
S^5^S5^^i^S^^^^^ 



ONAC 



I STORY, 



AND 



'oliticaijevelopemelnt 

OF THE 

UNITED States. 



SIMON STERNE. 



■ 



LIBRARY OF CONGRESS.- 

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DOTTED STATES OF AMERICA. 



CONSTITUTIONAL HISTORY 



AND 



POLITICAL DEYELOPMENT 



OF THE 



UNITED STATES. 



BY 



SIM0:N" STERNE, 



OF THE NEW YORK BAR. 




24 1832 



OFWASHlV*G;'S-^ 



CASSELL, PETTEE, GALPEST & CO., 
New York, London and Paris. 



K2¥fc 



Copyright, 

1882, 

By O. M. DUNHA.M. 



PRESS OF J. J. LITTLE & CO., 
MOS. 10 TO 40 ASTOR PLACE, NEW YORK. 



PEEFACE. 



The request addressed to me by the publishers 
to write a popular book on the Constitution of 
the United States, naturally led me to inquire 
whether, in the multiplicity of works on this, as 
on every other conceivable subject touching large 
popular interests, there is any room to say some- 
thing novel, or put into a novel form the old 
matter which has been said and written over and 
over again by abler tongues and pens than mine. 
It occurred to me that a sketch of the Constitution 
of the United States as it stands in text, and as 
it is interpreted by the Supreme Court, accom- 
panied by a history of the political controversies 
which resulted in the formation of and chang^es in 
that instrument, together with the presentation of 
the actual situation of political parties and ques- 
tions, which, in their turn, may produce constitu- 
tional changes, would, if given within a limited 
space, present such a view of the institutional 
condition of the United States as to justify the 
book to the student of political history. 

At no time in the history of the United States 
have its institutions awakened such widespread 



IV PREFACE. 

and friendly interest as at present. It is true that 
during the great Civil War, from 1861 to 1865, the 
news from the contending armies was read with 
greater avidity than that which is awakened by 
items of a commercial, agricultural and indus- 
trial character, which now in the main fill the col- 
umns of the press ; but a far larger proportion of 
the human family are more largely interested in 
these very items than then were in our military 
contests, as since that period the United States 
have become the largest contributor to the food 
supply of the world. 

The period of the history of our country, begin- 
ning with the close of the war, is a most interest- 
ing one to the student of political institutions. 
European statesmen doubted and many thoughtful 
Americans at times had misgivings whether our 
institutions could bear the strain of the problems 
which the close of the war placed before the Na- 
tional Government. Every war issue has been met 
and successfully solved. The ills of an improperly 
laid and collected revenue, a bad civil service, and 
mischievous methods of taxation and corrupt munici- 
pal governments still exist, but not one of these evils, 
properly speaking, can be said to date from the 
war period, but the roots of them were planted 
many years before the slavery agitation was at its 



PEEFACE. V 

height. Nigh a million of men, who in the North 
and South were under arms, at the close of the war 
were disbanded and absorbed again by the agricul- 
tural and industrial enterprises of the country, and 
no appreciable increase of crime or lawlessness was 
visible in the community. The Government re- 
turned to a sound currency from a war currency of 
depreciated paper, notwithstanding the fact that 
great masses believed the return to specie payment 
to be the road to ruin of individual enterprise. A 
large proportion of the debt created by the war 
has already been paid off, and the remainder 
refunded, by the establishment of a financial credit 
second to none in the world, at so low a rate of 
interest, that the burden of the debt, taking into 
consideration the increase of population, is but a 
third of what it was a-t the close of the war ; the 
revenue of the country is so far in excess of its 
financial needs, that but for the ingenuity of poli- 
ticians to devise jobs to absorb public funds, the 
great debt of the United States, although the most 
recent of the great governmental debts of the 
world, would have been, and may, with an improved 
civil service and methods of representation, still be 
the first to be paid off. 

All these evidences of elasticity of institutions 
enabling us successfully to meet unlooked for 



VI . PREFACE. 

emergencies in our country's needs, have from time 
to time elicited the admiring expressions of pub- 
licists the world over, and caused them more 
closely to study institutions which, while they on 
the one hand secure individual freedom of action, 
seem not to be devoid of the power to produce 
such far reaching results as are supposed to be 
the special advantage of the more paternal forms 
of government. 

To attribute the whole of the prosperity of the 
people of the United States to their institutions 
would be puerile in the extreme. Any constitu- 
tional form of government securing freedom of 
action in dealing with its practically exhaustless 
resources and advantages, among which may be 
enumerated vast treasures of mineral wealth, fruit- 
ful soil and beneficent climate, coupled with a 
geographical situation which almost wholly pre- 
vents foreign complications, would have made for 
the inhabitants of the vast domain known as the 
United States, a home filled with comfort, luxury 
and wealth, and have attracted seekers of fortune 
from every quarter of the globe. 

That the institutions of the United States did, 
however, largely favor the growth of national 
wealth cannot be denied. !N"ot to speak of other 
advantages afforded to individual enterprise, the 



PKEFACE. VU 

entire absence of any inter-state Custom-liouse from 
Maine to Florida, and from tlie Atlantic to the 
Pacific coast, lias given tlie inestimable and incal- 
culable advantages of free-trade in its most 
absolute form over a larger surface and among 
more varied conditions of an industrial and agri- 
cultural character than exists elsewhere on the 
face of the globe. While it is true that in more 
recent years (since 1846) European nations have 
let down the barriers of protection towards each 
other by treaty and more liberal legislation, yet in 
the United States the practical advantage of the sys- 
tem of free-trade commenced almost synchronously 
with the teaching of the doctrine by Adam Smith 
in 1776. That the errors of protection still govern 
the legislation of the United States in their relations 
with foreign countries, and to a degree counter- 
balance in evil the benefits thus conferred, is true 
only to the limited extent that foreign commerce 
bears to a nation's internal exchanges ; and as the 
proportion of foreign commerce is at best not one 
to twenty of domestic interchange, the benefits 
conferred by the freedom of exchange within the 
United States, must have been out of all proportion 
greater than the injury inflicted by the protective 
system inaugurated in 1861, which is, if the signs 
of the times do not mislead, fast crumbling away. 



Vlll PEEFACE. 

Tliat there is ample scope for the- political re- 
former, and much material to work upon in the 
United States as elsewhere, and in some respects 
more than elsewhere, will in the following pages be 
frankly admitted. The methods of legislation are 
wofuUy defective, primitive and corrupt ; the exist- 
ing system of representation is faulty, inharmonious 
and unphilosophical ; the tariff legislation, a mass 
of injustice and incongruities, resulting in a collec- 
tion of revenue at the highest possible expense to 
the consumer. Municipal government is a prey 
to jobbery and venality of every description. The 
Civil Service goes by favor, not by merit, and polit- 
ical parties divide upon all conceivable questions 
except those of principle, and unite in almost every 
attack upon the public purse or against personal 
rights in favor of monopoly interests. But the 
one crowning merit of American institutions may 
be summed up in the fact that as an honest, earnest, 
and persistent appeal to the good sense of the 
people has in the past caused a spirit to arise able 
to cope with more formidable evils, these defects 
will in all probability be remedied by deliberately 
formulated constitutional changes adequate to 

extirpate them. 

Simon Sterne. 

80 West 59tli Street, New York. 



CONTENTS. 



CHAPTER I. P^GE 

COKSTITUTIOI!T OF THE UNITED STATES 1 

CHAPTER n. 
The Legislative Depahtment , 27 

CHAPTER in. 
The Executive Poweb, 65 

CHAPTER IV. 
The Judicial Power 96 

CHAPTER V. 

The Post-Constitutioistal Histoky op the United 

States 145 

CHAPTER VI. 

Cukrekt Questions Productive op Changes in the 
Constitution 333 

CHAPTER VII. 

The State Constitutions : The Changes Therein, 
AND their Development 250 

ix 



X CONTENTS. 

APPENDIX. PAGE 

Abticles of Confedekation and Perpetual Union 
between the states 275 

Constitution of the United States 288 

Articles in Addition to, and Amendment of, the 
Constitution of the United States 303 

Index 309 



CONSTITUTIONAL HISTORY 



OF THE 



United States, 



CHAPTEK I. 

CONSTITUTION OF THE UNITED STATES. 

It would far transcend the limits of a book 
intended for popular purposes, to enter into an 
elaborate investigation of all the causes which 
contributed to the creation of the United States 
Constitution, or to trace in detail the reasons why 
the constitutions of the American States all came to 
be written documents, instead of being unwritten 
and elastic principles of government, like the Consti- 
tution of Great Britain. Without much sacrifice 
of space, however, a few salient elements may prop- 
erly here have attention drawn to them. 

The powers of the governments of the English 

colonies in America, anterior to the Revolutionary 

war, beginning in 1775, were all written instruc- 

1 



2 CONSTITUTIONAL HISTOEY. 

tions, accompanied by cliarters and grants of title 
and formulated frameworks of government. The 
English colonists were thus accustomed to written 
documents as the source of governmental power, 
and the meaning of their provisions was the test 
of governmental limitations. 

At an early date in the history of the origin and 
settlement of Virginia no taxes were to be levied 
by the Governor without the consent of the Gen- 
eral Assembly, and when raised they were subject 
to an appropriation by the Legislature of the 
colony. The Plymouth colonists, who were the 
settlers of New England, acted originally under a 
form of voluntary compact ; but their descendants 
found it difficult to obtain proper respect for 
governmental authority under this voluntary form 
of association, and in January, 1629, by a patent 
from the Council under the charter of King James 
of 1620, obtained sanction and authority for the 
laws which they subsequently enacted. The fact 
that this charter lacked royal assent was the ex- 
cuse for its withdrawal by Charles II., and it was 
not until 1691, under the charter granted by 
William and Mary, that unquestioned royal 
authority was granted for the laws enacted by the 
New England colonists. 

At an early period in the history of the English 



CONSTITUTION OF THE UNITED STATES. 3 

colonies in America the rights of the inhabitants 
to personal liberty were based upon Magna Charta 
and the Declaration of Eights ; and the common 
law, except in so far as it may have been modified 
by special charters, was the prevailing law of the 
land. 

The principle upon which the common law was 
thus recognized as the prevailing law, was that it 
was the birthright and inheritance of every emi- 
grant in so far as it was applicable to his condition. 

There were three classes of government, instituted 
in America by the English crown. One was the 
provincial establishments, in which the Governor 
was made supreme ; under this form of govern- 
ment New Hampshire, New York, New Jersey, 
Virginia, the Carolinas, and Georgia were adminis- 
tered. The second was called proprietary govern- 
ments, which embraced grants to individuals with 
governmental powers ; under this form, in their 
earliest history under the English crown, Mary- 
land, Pennsylvania, and Delaware were constituted. 
The third was charter governments, of which 
Massachusetts was the leading example, and Con- 
necticut and Rhode Island as derivative forms from 
the Massachusetts grant. Under all these forms, 
in process of time, local Legislatures were estab- 
lished, which drew to themselves a considerable 



4 COl^STITUTIONAL HISTOEY. 

proportion of the governmental power whicli had 
originally been parceled out to' the governors of 
the colonies. In both the proprietary and charter 
governments, the colonists, during all the early 
struggles with the crown, insisted that they had an 
inherent right of representation ; the crown, on the 
other hand, insisted that it was a mere privilege, held 
at its will. In some of the colonies the laws were 
required to be sent to the King for his approval ; in 
others, they were not so required ; but the general 

feeling on the part of the colonists of their right 
to make their own laws is best expressed in the 
declaration drawn up by the Congress of the nine 
colonies assembled at New York in October, 1765, 
wherein they are made to say, " that they owe the 
same allegiance to the crown of Great Britain that 
is owing from his subjects born within the realm, 
and all due subordination to that august body, the 
Parliament of Great Britain ; that the colonists 
are entitled to all the inherent rights and liberties 
of his natural-born subjects within the kingdom 
of Great Britain ; that it is inseparably essential 
to the freedom of a people and the undoubted 
right of Englishmen that no taxes be imposed upon 
them but with their own consent, in person or by 
their representatives ; that the people of the colo- 
nies are not, and from their local circumstances 



COlSrSTITUTIOX OF THE UNITED STATES. 5 

cannot, be represented in tlie House of Commons ; 
that the only representatives of the colonies are 
persons chosen by themselves ; that no taxes could 
be constitutionally imposed upon them but by their 
respective Legislatures ; that the supplies of the 
crown being free gifts of the people, it is unreason- 
able and inconsistent with the principle and spirit 
of the British Constitution for the people of Great 
Britain to grant to His Majesty the property of the 
colonies ; and that trial by jury is an inherent and 
invaluable right of every British subject in the 
colonies." 

The united colonies admitted the right of Par- 
liament to pass general acts for the amendment of 
the common law to which the colonies were sub- 
ject, or general acts for the regulation of trade and 
commerce throughout the whole empire, but de- 
nied the right of Parliament to pass special acts 
applicable only to a part of His Majesty's subjects, 
to wit, the inhabitants of the colonies, and more 
particularly special acts imposing taxation. The 
Stamp Act being such a special act, the colonies, 
in 1774, at the invitation of Massachusetts, assem- 
bled in September of that year at Philadelphia in 
a Congress, and thus inaugurated, for the first time 
in the history of the English-American colonies, a 
general deliberative body, deriving its authority 



6 COjS^STITUTIONAL histoey. 

from the people of tlie colonies alone. This Con- 
gress was the revolutionary government, which 
continued to exercise power during the whole of 
the revolutionary struggle, and was only super- 
seded by the Articles of Confederation, which 
came into existence during the latter part of the 
war of Independence. The Continental Congress 
avoided creating jealousy between the several col- 
onies, by placing them all, independently of size or 
numerical strength, on the same footing; inasmuch 
as each combined delegation from each separate 
colony had but a single vote. 

The second session of this Congress of dele- 
gates met in May, 1775, immediately after the 
opening of the war of Independence by the battles 
of Lexington and Concord. This Congress then 
assumed supreme direction of the war of Inde- 
pendence, and was, to all intents and purposes, the 
gover:!;iment of the united colonies after the 4th 
of July, 1776, when the Declaration of Independ- 
ence was promulgated to declare their sever- 
ance from the British crown, to make treaties 
with foreign governments, and to establish a nation. 
They appointed the officers of the army; they 
pledged the credit of the united colonies for the 
payment of the expenses of military organization ; 
they apportioned the amounts which each State 



COKSTITUTIOIS^ OF THE UKITED STATES. 7 

was to pay toward the general expenses ; they 
adopted rules for tlie government of the army and 
navy ; they granted commissions by letters of 
marque to capture the vessels of Great Britain; 
and exercised, in short, substantially all the 
powers which subsequently, first by the Articles 
of Confederation and then more fully by the Con- 
stitution of the United States, were ceded by the 
several States to the general or national government. 

The severance of the colonies from Great 
Britain, both by the facts of the war and by the 
formal Declaration of Independence, made each 
particular colony a sovereign and independent 
State, except in so far as it might voluntarily con- 
sent to subject its sovereignty, by cession, to the 
general government of all the States. Although 
this is true of the original thirteen States, it is 
scarcely true of the remaining twenty-five, as their 
very existence as States depended entirely upon 
the fiat of the Federal Congress. 

Several of the States, between the breaking out 
of the War of Independence and the formation of the 
Articles of Confederation, passed constitutions of 
their own, in which they formally declared their in- 
dependence from the mother country, and reenacted 
such parts of Magna Charta and the Declaration 
as were applicable to their condition, together 



8 COT^STITUTIOJSTAL HISTOEY. 

with statements of the rights of man expressive of 
the wider views and the more revolutionary prin- 
ciples which had found acceptance with the colon- 
ists from the freedom of movement and independ- 
ence of character incident to and formed by 
American colonial conditions. These views, as to 
forms of expression, were very considerably influ- 
enced by the theoretical teachings of the French 
Encyclopaedists, whose works, to no small degree, 
contributed to quicken the thoughts and methods 
of expression of Jefferson, Adams, Madison, and 
Hamilton, who were the leading minds of the Con- 
tinental Congress. 

Yirginia, New Hampshire, New York, and South 
Carolina had, before 1778, passed constitutions for 
the people of their States as sovereignties, and 
subsequently every State of the Union, after the 
Articles of Confederation were formed, by a prop- 
erly delegated convention of its people, put in 
shape, and, by subsequent submission to the people, 
caused the passage of organic laws, called constitu- 
tions, by which the general framework of the 
institutions under which they were living was 
mapped out, the division of Executive, Judicial, 
and Legislative functions clearly defined, and the 
rights inherent in the people beyond governmental 
control, expressed and insisted upon. 



COlSrSTITUTIO]!^ OF THE UNITED STATES. 9 

The revolutionary Congress, recognizing the fact 
that its existence would end with the struggle, and 
acting on the assumption that the struggle would 
result favorably to the colonies, appointed in June, 
1776, a committee composed of one member from 
each colony, to consider the form of Articles of Con- 
federation to be entered into between the colonies, 
as a permanent form of government. These Articles 
of Confederation formed the subject of debate in 
Congress until the 15th of November, 1777, when 
they were adopted. A circular letter was prepared 
to the several States requesting authority from the 
States to authorize their delegates to Congress to 
subscribe the Articles of Confederation. The States 
proposed many amendments, which wereall rejected 
by Congress, because Congress deemed it inexpedi- 
ent to accept any amendments for fear of the delay. 
A draft was thereupon prepared and sent to all the 
States on the 26th of June, 1778, and was ratified 
by them all, except Delaware and Maryland, which 
respectively withheld their ratifications, the one 
until 1779 and the other until 1781. 

From the moment of the organization of govern- 
ment under the Articles of Confederation, the 
question of the ownership of the lands which 
theretofore had belonged to the crown, in the 
several States, was one irritating subject between 



10 COIN^STITUTIOITAL HISTOEY. 

the States, and tlie not-clearly defined boundaries 
between the States was another. The only way to 
overcome the difficulty first named, was to conform 
to the suggestion of Congress, that the several 
States should cede the crown lands within their 
borders to the general government, as lands belong- 
ing to the people at large. The name of the con- 
federacy was the United States of America. Under 
it the following powers of government were secured 
to the nation and ceded by the States : 

Congress was empowered to determine on peace 
or war with foreign nations, of sending and receiving 
ambassadors, making treaties of commerce; but 
each State was free to levy whatever import or 
export duties it saw fit, to determine upon the 
rules of capture by land or sea, appointing courts 
for the trial of cases of captures on high seas and 
piracy. In all cases of dispute between the States, 
if the agents of the States could not by joint con- 
sent agree upon judges to try their causes as they 
might arise. Congress was empowered to constitute 
a court by a most cumbersome method. Three 
persons were appointed from each State, and then 
the disputing States struck one each, until thir- 
teen remained, from which number Congress drew 
out seven or nine by lot, a majority of which de- 
termined the cause finally. 



CONSTITUTIOjN^ of the UiSHTED STATES. 11 

Congress was also empowered to regulate the 
coinage, to afford postal facilities, and to appoint 
the officers for the land and naval forces. 

During the recess of Congress, its powers were 
conferred upon a committee of the States — one 
from each State — with the limitation, however, 
that upon almost every important question it 
required the assent of nine States before the 
measure could become operative as a law. 

Under these Articles of Confederation the treaty 
of peace with England was concluded and the 
American nation was governed until the final adop- 
tion of the Constitution of the United States. The 
main defect of the Articles of Confederation was, 
that although powers sufficiently adequate to cre- 
ate a government were ceded, there was no power 
to raise revenue, to levy taxes, or to enforce the 
law, except with the consent of nine States ; and 
although the government had power to contract 
debts, there were no means by which to discharge 
them. The government had power to raise armies 
and navies, but no means wherewith to pay them, 
unless the means were voted by the States them- 
selves ; they could make treaties with foreign pow- 
ers, but had no means to coerce a State to obey 
such treaty. In short, it was a government which 
had the power to make laws, but no power to pun- 



12 CONSTITUTIONAL HISTOEY. 

ish infractions thereof. Washington himself said . 
*' The Confederation appears to me to be little 
more than the shadow without the substance, and 
Congress a nugatory body." 

Chief Justice Story, in summing up the leading 
defects of the Articles of Confederation, says : 
" There was an utter want of all coercive authority 
to carry into effect its own constitutional measures ; 
this of itself was sufficient to destroy its whole 
efficiency aS a superintendent government, if that 
may be called a government which possessed no 
one solid attribute of power. In truth, Congress 
possessed only the power of recommendation. 
Congress had no power to exact obedience or pun- 
ish disobedience of its ordinances ; they could 
neither impose fines nor direct imprisonments, nor 
divest privileges, nor declare forfeitures, nor sus- 
pend refractory officers. There was no power to 
exercise force." 

This absence of all coercive power was most 
directly and injuriously felt in the financial adminis- 
tration of the nation. The requisitions of Congress 
for money were disregarded at will. The conse- 
quence was, that the treasury of the United States 
was empty ; the credit of the confederacy was gone ; 
and while public burdens were increasing, public 
faith was prostrate. Even the interest of the pub- 



COl^STITUTION OF THE UT^ITED STATES. 13 

lie debt remained unpaid, and tlie bills of credit 
that had been issued during the Revolution and 
immediately subsequent thereto sank to so low 
a value that the public debt was substantially- 
repudiated. As an illustration of this fact, it may 
be remarked that of the requisitions for the pay- 
ment of the interest upon the domestic debt from 
1782 to 1786, which amounted to more than six 
million dollars, only a million was paid. Each 
State saw fit to exercise its sovereign power to 
regulate commerce with the other States, and this 
created dissensions between the States ; so that in 
1784 the national Congress formally declared its 
inability to maintain the public credit or to enforce 
obedience to its own dictates, and from time to time, 
up to 1787, declared in various public ordinances 
its inability even to enforce its own treaty power. 

This state of things became intolerable, and was, 
by the leading men who had guided the colonies 
through the struggles of the War of Independence 
and aided in the formation of the Articles of Con- 
federation, recognized as a mischief which would 
result in the disintegration of the union of the 
States. Hence an active propaganda was instituted 
in all the States for the preparation of more perfect 
articles of union and the creation of a government 
representing the States as a nation. In February, 



14 CONSTITUTIONAL HISTORY. 

1787, a resolution was adopted by Congress recom- 
mending a convention in Philadelphia of delegates 
from the several States for the purpose of revising 
the Articles of Confederation, and reporting to 
Congress and the several Legislatures such altera- 
tions and provisions therein as should, when 
agreed to in Congress and confirmed by the sev- 
eral States under the Federal Constitution, be ade- 
quate to the exigencies of government and the 
preservation of the Union. 

The convention met, and, after very full consid- 
eration, determined that amendments to the Ar- 
ticles of Confederation would be inadequate for the 
purposes of the government, and prepared a new 
Constitution, the ratification of the conventions of 
nine States to be deemed sufficient for the estab- 
lishment of the constitution between the States so 
ratifying the same. This Constitution was submitted 
to the several States, and was ratified by eleven 
of them. North Carolina and Ehode Island standing 
out, the former until November, 1789, and the 
latter until May, 1793. 

Although the government was organized by the 
ratification by eleven States, the ratification by all 
the States made that instrument the supreme law 
of the land, and that Constitution, with its amend- 
ments, from that time forth, remained the chart 



CO]S^STITUTIO]S' or THE UNITED STATES. 15 

under whicli the government of the United States 
has been administered in all its foreign and inter- 
state relations. 

In the construction of this chart of government 
it must be remembered that the government of the 
United States is one of delegated powers ; that in 
theory the States possess all the sovereign powers 
not delegated, either expressly or by necessary 
implication, to the general government, and that 
the vast body of law, known as constitutional 
law, in the United States, deals first with the in- 
terpretation of these delegated powers to the gen- 
eral government, and secondly with the reserved 
rights of the States under their respective State 
constitutions, and the reserved rights of the peo- 
ple never delegated either to the State or to the 
general government. 

The history of the Constitution shows, first, that 
the compact between the States v/as intended to be 
indissoluble. The Articles of Confederation in 
terms said so, and when they were found inade- 
quate for the purpose, the Constitution was framed, 
"to form a more perfect union." Likewise the 
States are indestructible. The Constitution is a 
compact of States, and the States are, therefore, an 
integral part of the nation ; without them there is 
no compact which can bind other States. This has 



16 COJS^STITUTIOJSTAL HISTOEY. 

been decided in a recent case (Texas vs. White) by 
the Supreme Court of the United States. 

The Constitution makes the national government, 
in all matters delegated to it, the supreme power 
of the land, and not only is it the supreme power 
in all such matters wherein the Congress of the 
United States has, in pursuance to constitutional 
authority, acted, but it is the supreme authority 
whenever it chooses to take up a subject which is 
delegated to the government of the United States, 
although the States, in the absence of such action 
on the part of the general government, have seen fit 
to pass laws of their own to meet the emergencies. 
A notable instance of this is bankruptcy. From 
time to time bankruptcy laws have existed in the 
United States, enacted by the general Congress, 
and have been repealed. During the period of re- 
peal the various States have enacted insolvency 
and bankrupt laws which, on the instant when the 
general government again took up the subject by 
passing a new bankruptcy law, were all ipso facto re- 
pealed and remained so repealed until the national 
law was in its turn repealed. 

The Territories of the United States have no re- 
served rights. They can be dealt with by the gen- 
eral government in such way as it may see fit, and 
not until a Territory becomes sufficiently populous 



coxstitiitio:n" of the ui^ited states. 17 

to be admitted as a State does it become clothed 
with all the reserved rights of States, and when 
so clothed it is as sovereign and independent a 
community as though it had been one of the origi- 
nal thirteen States which, had entered into the 
compact. 

Amendments to the Constitution are provided 
for in two ways. One, by giving to Congress the 
initiative by passing amendments by a vote of two- 
thirds of both Houses and subjecting such amend- 
ments to the ratification of the Legislatures of the 
several States, to be so ratified by three-fourths of 
the several States, or, by conventions of three- 
fourths thereof, as one or the other of the modes 
of ratification might be proposed by Congress. 
Another mode provided by the Constitution is, to 
call a convention for proposing amendments on 
the application of the Legislatures of the several 
States ; the work of which convention must be 
equally ratified by the Legislatures of three- 
fourths of the States or by conventions in three- 
fourths thereof. The only limitation upon the 
power of amendment of the Constitution is, that no 
State, without its consent, shall be deprived of its 
equal suffrage in the Senate. This provision was 
deemed necessary in order to prevent an amend- 
ment by the more powerful and larger States which 



18 COIS^STITUTIOI^AL HISTOET. 

should deprive the few smaller States, such as 
Ehode Island or Delaware, o*f their equal repre- 
sentation in the Senate. This power of amendment 
takes away all excuse for revolution, because the in- 
strument which is the supreme law of the land pro- 
vides a method by which the popular will can act 
upon it so as to remedy or remove any existing or 
supposed abuses. 

The general provisions of the Constitution which 
do not fall under the divisions of Legislative, Ju- 
dicial and Executive functions, are enumerated in 
the fourth and sixth articles of the Constitution of 
1789, the amendments of 1789, and 1790, 1794, 
1798, 1804, and what are known as the thirteenth, 
fourteenth and fifteenth amendments, which were 
the result of the Civil War. These provisions 
in general terms provide that full faith and credit 
shall be given in each State to the public acts, 
records, and judicial proceedings of every other 
State ; that the citizens of each State shall be en- 
titled to the privileges and immunities of the citi- 
zens of the several States ; that persons who are 
fugitives from justice shall be delivered up to 
the State having jurisdiction of the crime ; a pro- 
vision by which persons who were held to labor 
in one State were required to be delivered up if 
they fled into another for the purpose of escap- 



COIS^STITUTION OF THE UJVTITED STATES. 19 

ing from such, servitncle ; a section allowing States 
to be admitted into tlie Union, but prohibiting Con- 
gress from creating new States from existing States 
without the consent of the latter ; and that the 
United States shall guarantee to every State in the 
Union a republican form of government, shall pro- 
tect each against invasion, and on the application 
of the Legislature, or of the Executive of a State 
when the Legislature cannot be convened, protect 
it from domestic violence. 

The first amendments which were deemed neces- 
sary to the Constitution after its formation were 
proposed almost immediately after its adoption, 
and were rather in the nature of after-thoughts 
better to protect th3 rights of individual liberty. 
The first article of the amendments provided that 
Congress shall make no law respecting the estab- 
lishing of religion, or prohibiting the free exercise 
thereof, or abridging the freedom of speech, or of the 
press, or of the right of the people peaceably to as- 
semble, or to petition the government for a redress of 
grievancos. The second one provides that a well- 
regulated militia being necessary to the security 
of a free State, the right of the people to keep and 
bear arms shall not be infringed. The third, that 
no soldier shall in time of peace be quartered at 
any house without the consent of the owner, and 



20 COIiSTITUTIO]SrAL HISTOET. 

in time of war, in a manner only to be prescribed 
by law. The fourth, the right of the people to be 
secure in their persona, houses, papers and effects 
against unreasonable searches and seizures, shall 
not be violated, and no warrants shall issue but 
upon probable cause supported by oath or affirma- 
tion, and particularly describing the place io be 
searched and the person or things to be seized. 
The fifth, that no person shall be held to answer for 
a capital or otherwise infamous crime unless upon 
a presentment or indictment of a grand jury, except 
in cases arising in the land or naval forces, of the 
militia when in actual service in time of war, or 
public danger ; and that no person shall, for the 
same offense, be put twice in jeopardy of life or 
limb, nor be compelled in any criminal case to 
be a witness against himself, nor be deprived of 
life, liberty, or property, without due process of 
law, and that private property shall not be taken 
for public use without just compensation. The 
sixth is to the effect that in all criminal prosecu- 
tions the accused shall enjoy the right to a speedy 
and public trial by an impartial jury of the State 
and district wherein the crime shall have been 
committed, which district shall have been pre- 
viously ascertained by law, and to be informed of 
the nature and cause of the accusation, to be con- 



COl^STITUTION OF THE UNITED STATES. 21 

fronted with, the witnesses against him, and to have 
compulsory process for obtaining witnesses in his 
favor, and to have the assistance of counsel for his 
defense. The seventh, that in all suits at common 
law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be 
preserved. The eighth is to the effect that exces- 
sive bail shall not be required, nor excessive fines 
imposed, nor cruel or unusual punishments inflicted. 
The ninth, to prevent any misconstruction by the 
courts, that rights not specially reserved by the 
people are therefore withheld from arbitrary power, 
specifically says that the enumeration in the Con- 
stitution of certain rights shall not be construed to 
deny or disparage others retained by the people. 
The tenth, that powers not delegated to the United 
States by the Constitution, or prohibited by it to the 
States are reserved to the States respectively or to 
the people. The eleventh was proposed in Sep- 
tember, 1794, by Congress, and was ratified in 
January, 1798, and is to the effect that the judicial 
power of the United States shall not be construed 
to extend to any suit in law or equity commenced or 
prosecuted against one of the United States by 
citizens of another State, or by citizens or subjects of 
any foreign State. The force and effect of the twelfth 
amendment, which was adopted in 1804, in rela- 



22 COI^STITUTIOI^AL HISTORY. 

tion to tlie election of tlie President of tlie United 
States, will be considered in connection with the 
creation and powers of the Executive department 
of the government. The thirteenth, fourteenth 
and fifteenth amendments were the result of the 
Civil War, 1861-1865. Their declared object, pur- 
pose and meaning were forever to abolish the sys- 
tem of slavery or domestic servitude, and to prevent 
thereafter all class distinctions or inequalities 
before the law arising from color, race, or previous 
condition of servitude. A stringent provision was 
made to prevent persons from holding office who 
had been in office and had taken an oath to sup- 
port the Constitution of the United States prior to 
the rebellion, but who, notwithstanding such oath, 
were engaged subsequent thereto in insurrection or 
rebellion. It was provided, however, that Congress, 
by a vote of two-thirds of each House, might remove 
such disability. A provision was made to pre- 
vent the validity of the public debt of the United 
States from being questioned, and to prevent the 
United States, or any State, from assuming any 
debt or obligation incurred in aid of insurrection or 
rebellion against the United States, or recognizing 
any claim for the loss or emancipation of any slave, 
and that all such debts and obligations and claims 
shall be held illegal and void. The representative 



cojS^stitutioit of the ui^ited states. 23 

system, by the representation of the majority in 
geographically defined districts, was adopted as the 
cardinal and underlying principle of creating the 
law-making power under the Constitution of the 
United States, and of the several States, and wher- 
ever Congress is required to act, or the people of 
the several States are required to act, through 
their Legislatures, the meaning thereof is that such 
congressional action or legislative action shall be 
done by a mere majority, unless otherwise declared. 

In considering also the provisions of the Consti- 
tution, it must be borne in mind that they are 
largely the result of compromise. The jealousy 
of the States of each other was the cause of the 
threatened dissolution of the Confederacy under 
the system of government which prevailed in the 
United States of America from the close of the war 
in 1783 until 1789, the year of the adoption of the 
Constitution of the United States. 

When, in consequence of the pressure that was 
created by the evident inadequacy of the Articles 
of Confederation to create a permanent form of 
government, the people of the United States called 
a convention to consider provisions for the forma- 
tion of a more perfect union, the members of the 
convention were, more or less, under the influ- 
ence of this local jealousy, and the organization of 



24 CONSTITUTIONAL HISTOEY. 

the Senate, giving to eacli State two members, 
independent of the numbers, wealth, or position of 
the State, was intended to placate the smaller 
States and to make them feel that, although nnder 
a system of representation dependent upon nu-' 
merical strength they would lose power in the lower 
House, they would still, by the veto power that the 
upper House had over the legislation of the lower, 
preserve their dignity as States and prevent the 
possibility of the passage of laws detrimental to 
their interests. Thus, it happens, for instance, 
that the new State of Colorado, although having 
two Senators, has but one Eepresentative, its 
numerical strength being just sufficient for a single 
Eepresentative in the House of Representatives ; 
yet its admission as a State entitles it to equal 
position in the Senate with the State of New York 
with its five millions of inhabitants. 

From an early period in the history of the United 
States, down to the commencement of the Civil 
War, the general theory of whether the Constitu- 
tion of the United States was a compact between 
the several States, or was a framework of govern- 
ment which did not admit of the idea of compact, 
was hotly disputed. On the one hand it was con- 
tended that, as there is no common umpire or 
tribunal authorized to decide as a last resort upon 



COISrSTITUTION OF THE UNITED STATES. 25 

the powers and interpretation of the Constitution, 
each State had a right to construe the compact for 
itself. Such was the resolution of Virginia as earlj 
as 1829 ; such was the resolution of South Carolina 
when it attempted to nullify the tariff legislation 
of the United States in 1831. But this theory is 
refuted by the very wording of the Constitution 
itself, which says that it is ordained and established 
by the people of the United States to create a more 
perfect union ; and, as all the States were parties to 
it, no one State could construe it against the rights 
of the other States. Such an interpretation is 
against the theory of government itself, which pro- 
hibits any State which has once delegated its powers 
to a sovereign, from reasserting such power, with- 
out the consent of such sovereign ; and leads to 
the reductio ad absurdum of claiming the possibility 
of carrying on a government which would give to 
each member thereof the right to deny the very 
existence of the government itself whenever it feels 
the pressure of the governmental hand. 

On all constitutional questions the Constitution 
itself appointed a tribunal which was to interpret 
and expound its provisions, and, therefore, no 
province was left to the Legislatures of the various 
States that for an instant admitted their interven- 
tion to determine the limit, the extent, and the 
2 



26 CONSTITUTIOlSrAL HISTOEY. 

functions of tlie United States Government. The 
Supreme Court of the United States was ,tlie 
final and only interpreter of all the powers con- 
ferred by the various States upon the general 
government. The Civil War of 1861-1865 origin- 
ating from the desire to preserve slavery on the 
part of the Southern States, uninterfered with by 
the sentiments or feelings of the Northern States, 
and also to maintain the doctrine of State rights, 
resulting disastrously to the South, took that 
branch of constitutional controversy out of Ameri- 
can politics. Since the thirteenth, fourteenth, 
and fifteenth amendments the political fact has 
been established that the United States Government 
is indissoluble, and that the Constitution of the 
United States created not a partnership between 
the States, but a form of government for the States, 
from which such States could not withdraw; and 
that, instead of remitting questions between the 
States to the arbitrament of the sword, they had to 
find peaceful solution after argument before the 
Supreme Court of the United States, or by agitation 
for amendment of the Constitution itself. 



CHAPTEE II. 

THE LEGISLATIVE DEPAKTMENT. 

We have thus far, in our examination of the pro- 
visions of the Constitution of the United States, 
shown that the reason why the Articles of Confed- 
eration failed to accomplish their purpose to create 
a nation, was because the national authority, as 
created by such Articles, was stripped of the ele- 
ment of sanction. There was, in the first place, 
no supreme executive power ; in the second place, 
the Federal Congress had simply power, until 
the adoption of the Constitution of 1789, to pass 
laws without enforcing them, and they were there- 
fore in the nature of mere recommendations. The 
clear and unequivocal surrender of power on the 
part of the States of certain well-defined govern- 
mental functions to the national government, and the 
general transfer of power involved in that grant of 
the Constitution which says " that all legislative 
power by the Constitution granted shall be vested 

in a Congress of the United States which shall con- 

27 



28 COI^STITUTIONAL HISTOEY. 

sist of a Senate ancLHouse of Representatives," as in- 
terpreted by the Supreme Court of tlie United States, 
gives to the national Legislature power to pass 
laws on all subjects of which the United States has 
jurisdiction either by direct grant or by implication. 
The members of the House of Representatives are 
composed of members chosen every second year by 
the people of the several States, and the qualifica- 
tions requisite for electors are the same as those 
which the State constitutions require for electors of 
members in the same branch of the respective State 
Legislatures. The qualification of representatives 
are that each representative shall have attained the 
age of ' twenty-five years, that he shall have been 
seven years a citizen of the United States ; and that 
he be an inhabitant of the State in which he shall be 
chosen. Under the Constitution of 1789 the rep- 
resentatives as well as direct taxes were apportioned 
among the several States according to the number of 
their inhabitants, which included all free persons 
and those bound to service for a term of years ; 
three-fourths of all other persons, which of course 
meant slaves, and excluded Indians not taxed. The 
first enumeration after the adoption of the Constitu- 
tion was to be made within three years after the first 
meeting of the Congress, and thereafter every ten 
years. The number of representatives then fixed v/as 



THE LEaiSLATIYE DEPAETMENT. 29 

to be one for every thirty thousand, but each State 
was to have at least one representative. This provi- 
sion was subsequently chttngecl by the fourteenth 
amendment, to the requirement that the represen- 
tatives should be apportioned among the several 
States according to their respective numbers, count- 
ing the whole number of persons in each State, ex- 
cluding Indians not taxed ; and that when the right 
to vote at any election for the choice of electors for 
President and Vice-President of the United States, 
of Kepresentatives in Congress, of the Executive 
and Judicial officers of a State, or members of the 
Legislature thereof, is denied to any one of the male 
inhabitants of such State, being twenty-one years of 
age and a citizen of the United States, or in any 
way abridged, except for participation in rebellion 
or other crime, the basis of representation therein 
shall be reduced in the proportion which the num- 
ber of male citizens shall bear to the whole number 
of male citizens twenty-one years of age in such 
State. The object of this amendment, which was 
adopted in 1866, was to prevent the slave States, 
which theretofore had been in rebellion, from 
abrido-ino^ or limitins^ the rigjht of su&asfe on the 
part of the negroes for State offices, without incur- 
ring the penalty of diminishing thereby their rep- 
resentation in the House of Representatives of the 



30 co:nstitutional histoey. 

United States. Under the Constitution as it origin- 
ally stood the States were at liberty to determine 
as they saw fit the manner in which these repre- 
sentatives were to be elected within the States, or 
Congress was at liberty to legislate upon the sub- 
ject in furtherance of the constitutional provision 
as to representation. 

Congress did from time to time apportion the num- 
ber of representatives to each State in conformity 
with the census of each decade, so that in 1872, 
under the census of 1870, an apportionment was 
made by which the number of the members of 
the House of Representatives was fixed at 292. 
As the population of the United States from 
time to time increased. Congress likewise by law 
advanced the limitation of the number of persons 
who were entitled to single representatives, in 
order that the popular body should not become too 
numerous for purposes of deliberation ; so that 
under the census of 1870, by act of 1872, each 130,000 
of the population is entitled to one representative. 
By the act of 1872 making such apportionment, 
following the preceding acts of apportionment, 
it is required that Representatives to Congress 
shall be elected by districts composed of contigu- 
ous territory, containing as nearly as practicable 
an equal number of inhabitants, and equal in 



THE LEGISLATIVE DEPAETMEl^T. 31 

number to the number of representatives to wliicli 
tlie State in which they lie may be entitled in Con- 
gress, no one district electing more than one rep- 
resentative. This is followed by a provision that 
as to the then immediately succeeding Congress 
the additional re]Dresentatives to which each State 
should be entitled under the apportionment might, 
until otherwise provided for by the Legislature, be 
voted for upon a ticket at large. The only national 
requirement, therefore, as to election of representa- 
tives is, that they shall be elected by contiguous 
territories, one from each district. The manner in 
which the apportionment is to be made, the way in 
which districts are to be apportioned, the lines 
forming such districts, are all left to the legislative 
bodies of the several States. The apportionment 
act of 1872, which is the last apportionment act in 
force, provides the Tuesday after the first Monday 
in November of every second year as the day of 
election in all the States and Territories for rep- 
resentatives and delegates to the Congress of the 
fourth day of March next thereafter. The time for 
holding elections in any such district or territory 
for representative or delegate to fill the vacancy is 
prescribed by the laws of the several States and 
Territories. The vote for representatives is re- 
quired under the provisions of Congress to be by 



32 COI^STITUTIOj^AL histoey. 

ballot. The compensation of members of Congress 
is $7,500 a year, and an allowance for actual travel- 
ing expenses. 

At the first session of Congress after every 
general election of representatives, the oath of 
office may be administered by any member of the 
House of Representatives to the Speaker, and by 
the Speaker to all the members and delegates 
present, and to the Clerk, previous to entering on 
any business, and to members and delegates as 
they afterward appear, previous to their taking 
their seats. Before the first meeting of each Con- 
gress the Clerk of the next preceding House of 
Eepresentatives makes the roll of the representa- 
tives elected, placing thereon the names of those 
persons only whose credentials show that they 
were regularly elected, in accordance Avith the laws 
of their States, respectively, or laws of the United 
States. The Serge ant-at-arms is charged with the 
duties of the Clerk in the event of any vacancy in 
that office, in the event of the disability or absence 
of the Clerk, and in the event of the disability or 
absence of both Clerk and Sergeant-at-arms, the 
Door-keeper of the next preceding House of 
Representatives is charged with this duty. In the 
event of Congress being prevented, by a contagious 
disease or the existence of other circumstances, 



THE LEGISLATIVE DEPAETMETTT. 33 

making it, in the opinion of the President, hazard- 
ous to the lives of members to convene at the seat 
of government, he is authorized to convene them 
at such other place as he may judge proper. 

The Senate is constituted of the senators elected 
by the Legislature of each State. The election 
takes place on the second Tuesday after the meet- 
ing and organization of the Legislature ; and if an 
election fails to be made on the first day, at least 
one vote is required to be taken every day there- 
after, during the session of the Legislature, until 
a senator is chosen. An existing vacancy is filled 
in the same manner and in the same way, and if 
any vacancy occurs during the session it is filled 
by election, the proceedings for which are to be 
commenced on the second Tuesday after the Legis- 
lature has organized and has notice of such 
vacancy. The number of senators is fixed at two 
from each State, independent and irrespective of 
the size of the State or the number of its in- 
habitants; so that there are several instances of 
States, notably Oregon and Delaware and Nevada, 
which have two senators and but one representa- 
tive. 

No person can be a senator who has not attained 
the age of thirty years, been nine years a citizen 
of the United States, and who shall not have 



34 COI^STITUTIOI^AL HISTOEY. 

been, when elected, an inhabitant of the State 
from which he shall be chosen. 

Senators are chosen for six years. They are 
divided into three classes, one class being chosen 
every second year. If vacancies happen, the Exe- 
cutive of a State may make a temporary appoint- 
ment until the next meeting of the Legislature. 

The Yice-President of the United States is the 
President of the Senate, but without a vote, except 
in cases of equal division. The Senate chooses its 
other officers and also a President pro tempore in 
the absence of the Vice-President, or when he shall 
exercise the office of President. 

The organization of the Senate is provided for by 
the act of June 1, 1789. The oath of office is ad- 
ministered by the President of the Senate to the 
senators elected previous to his taking his seat. 
When a President of the Senate has not taken the 
oath of office, it is administered to him by any 
member of the Senate. 

Congress is the law-making power. One House 
contains the direct, immediate representatives of 
the people, the other the indirect representatives 
of the people ; i.e., the direct representatives of the 
States. Besides being part of the law-making 
power, the Senate shares with the President the 
power of appointment to office, of making treaties 



THE LEGISLATIVE DEPARTMEI^T. 35 

of peace and declarations of war. Altliougli Con- 
gress cannot be said to be superior to tlie co- 
ordinate Judicial and Executive departments of 
the Government, it nevertheless lias, from tlie 
nature of its functions, the sujDerior power. The 
history of the United States since 1865 gives 
several instances of the manner by which both the 
Judicial and Executive departments of the United 
States Government may, in cases of conflict, be 
coerced to a considerable degree by the law-making 
power. Notable instances of this coercion are the 
acts of Congress interfering with the Executive dis- 
cretion of President Johnson when he was in direct 
conflict with the majority of both Houses of Con- 
gress, and his subsequent imj)eachment and all but 
conviction and removal ; and the increase in the 
number of the judges of the Supreme Court of the 
United States, when a decision had been rendered 
upon a quasi-political subject — the constitutionality 
of the Legal Tender act, which did not conform to 
the opinions of the Executive and Legislative 
departments, and which was, therefore, to be re- 
argued and reversed, an increase of personnel of 
the court of last resort being: the coercive method 
found effective to secure such a result. 

Among the formalities of the organization of 
Congress, not heretofore referred to, are constitu- 



36 CONSTITUTIONAL HISTORY. 

tional provisions to tlie effect that Congress shall 
assemble at least once in every "year, and that the 
meeting shall commence on the first Monday in 
December, unless by law a different day be ap- 
pointed. Each House is made the judge of the 
elections, return, and qualifications of its own 
members. A majority is constituted a quorum: for 
the transaction of business, but power is given 
to a smaller number to adjourn from day to day 
and to compel the attendance of absent members. 
Congress is empowered to make rules for its own 
government, and each House makes its own rules. 
The expulsion of a member is given to two-thirds 
of either House. Neither House has the power 
during the session to adjourn, without the consent 
of the other House, for more than three days, nor 
to any other place than the one appointed by law. 
No senator or representative is permitted, during 
the term for which he is elected, to be appointed 
to any civil office under the authority of the United 
States, which shall have been created or the emol- 
uments whereof shall have been increased dur- 
ing such term of service, and no person holding any 
office under the United States shall be a member 
of either House during his continuance in office. 

All revenue laws must originate in the House of 
Eepresentatives. This includes all appropriation 



THE LEGISLATIVE DEPAETMENT. 37 

bills, but the Senate is permitted to propose or 
concur with amendments in the same manner as on 
other bills. Power is given to Congress to levy 
and collect taxes, duties, imposts, and excises ; to 
pay the debts, and provide for the common defense 
and general welfare of the United States ; but such 
duties, imposts, and excises must be uniform 
throughout the United States. We have already 
referred to the fact that the absence of such a 
power given in express terms, or even by necessary 
implication, and the absence of any power to 
enforce a system of taxation, was the main cause of 
the failure of the United States to form a stable 
government under the Articles of Confederation. 

In many forms has the question of the consti- 
tutional exercise of this power been before the 
Supreme Court of the United States. The result 
of these decisions may be summed up as follows : 
Congress has power to levy such taxes and imposts 
as it may see fit for public purposes. It was 
claimed that customs duties levied with the ulterior 
purpose of protecting home industry, were an un- 
constitutional exercise of power under this grant, 
for the reason that such duties are not levied with 
the view to the raising of revenue, but, on 'the con- 
trary, for the purpose of enabling manufacturers 
within the United States to increase profits on 



38 CONSTITUTIOl^AL HISTOEY. 

products for the benefit of their private operations. 
It was held by the Supreme Court of the United 
States, that if any revenue whatever was raised 
from this source, the motive could not be inquired 
into, and that the indirect benefit to classes in the 
community of this mode of raising revenue v/as 
one of the consequences which did not come within 
judicial cognizance It was held, however, by the 
Supreme Court of the United States in the case of 
Loan Association against Topeka, 20 Wallace, 655, 
that where, however, the tax is avowedly laid for a 
private purpose, it is illegal and void. In this case 
the tax, having been avowedly laid to aid a private 
corporation in creating a manufacturing establish- 
ment, was held to be an illegal exercise of the tax- 
ing power. This case has been followed in several 
of the States, and creates a line of cases which in 
time, as public opinion in the United States may 
be ripened and educated by politico economical 
studies, may lead to a reversal by the Supreme 
Court of the United States of its opinion that taxa- 
tion for incidental protection under the guise of 
revenue laws is a constitutional exercise of power. 
Thus may possibly be given to the United States 
the full benefit of free-trade doctrines through an 
interpretation by the Supreme Court of the United 
States, namely, that all customs duties must be 



THE LEGISLATIVE DEPARTMEls^T. 39 

levied for purposes of revenue only, and that if it 
appears to the court that the object is not one of 
revenue, but the incidental benefit of persons or 
classes in the community, it is unequal taxa- 
tion ; is a burden laid not for purposes of govern- 
ment, but for private purposes, and is, therefore, 
unconstitutional and void. 

Where Congress has the power to tax, the States 
are inhibited from exercising the same power, 
under the general exposition that what is granted 
to the government of the United States is taken 
away from the several States ; and when Congress 
exempts from taxation in express terms, the States 
are ipso facto inhibited from imposing taxation upon 
the same commodity or asset. For instance, the 
bonds of the United States are, by the contract of 
the bondholder with the federal government, incor- 
porated into the law creating the bonds, exempted 
from taxation. Under those circumstances it would 
be an illegal exercise of power on the part of the 
States or municipalities to tax such bonds. 

In a recent case decided by the Supreme Court 
of the United States it was fully recognized that 
the power to tax involved the power to destroy. 
As the Union and the State governments are coor- 
dinate branches of the polity of the United States, 
and as to tax the State governments or the muni- 



40 COT^STITUTIOITAL HISTORY. 

cipalities created thereunder, would involve the 
power to destroy the States or such muncipalities, 
Congress is by the very nature of such institutions 
inhibited from levying any such tax. Congress, 
therefore, cannot tax the salaries of State officers, 
franchises created by a State, municipal corpora- 
tion, of a State, processes of State courts, etc. 

Congress is empowered to borrow money on the 
credit of the United States. The meaning of this 
clause is too clear to require judicial interpretation, 
and gives constitutional sanction to the funded debt 
of the United States. Congress is authorized to 
regulate commerce with foreign nations, and among 
the several States, and with the Indian tribes. 
This power to regulate commerce with foreign 
nations involves, of course, the treaty-making 
poTf er ; to make such arrangements in relation to 
the commerce, resting on mutual comity, as exi- 
gencies may from time to time demand. The power 
to regulate commerce between the several States 
involves, of course, the power to regulate commerce 
on the navio'able rivers and streams which run be- 
tween the several States. And more recently, in 
consequence of the growth of inter state traffic and 
the establishment of railways which run through 
many States, and of telegraphic lines which spread 
their net-work over the whole of the domain of the 



THE LEGISLATIVE DEPARTMENT. 41 

United States, tliis power has been invoked by the 
people of the United States as a means of assert- 
ing uniform jurisdiction over corporate franchises 
coextensive in their exercise with the United States 
of America, although chartered under the several 
State laws. 

The question of railway and telegraph monopoly 
has in recent years become an agitated one in the 
United States, in consequence of the growth of those 
several interests, and the power of the United States 
to regulate such industrial enterprises, acting under 
State corporate franchises, but really carrying on 
inter-state commerce, has, by the Supreme Court 
of the United States, been recognized as a power 
vested in Congress ; and although ordinarily the 
safer course of legislation is toward decentraliza- 
tion of power, it is nevertheless true that in the 
case of industrial enterprises having a tendency to 
centralization within the area of the vast territory 
of the United States, the uniform power to regulate 
these enterprises, if they partake in the least of a 
monopoly character, must be equally coextensive 
with the territory they occupy. As the several 
States have shown themselves powerless to deal 
with the subject either in an efficient way or upon 
a uniform plan, the power of the United States, now 
placed beyond question by the decisions of the 



42 CO]^STITUTIO]^AL HISTORY. 

Supreme Court of the United States, to regulate 
these gigantic industrial enterprises is well lodged 
in the United States Congress. 

Power is given to the Congress of the United 
States to establish a uniform rule of naturalization 
and uniform laws on the subject of bankruptcy 
throughout the United States. The grant of this 
power of naturalization has been followed by- 
national legislation from time to time, by which 
persons who are residents of the United States for 
five years can become citizens thereof by following 
certain prescribed forms of identification, declara- 
tion of intentions, etc. Exceptions of an unim- 
portant character are made in cases of minors. 

The bankruptcy legislation of the United States 
has been extremely spasmodic. When a bank- 
ruptcy law exists the States are prohibited, by 
necessary imjDlication, from having insolvency laws 
in conflict with the bankruptcy laws. When the 
bankruptcy laws are repealed, as they frequently 
have been and as is the case at present, the State 
insolvent laws once more come into force. While 
the federal bankruptcy laws are on the statute 
book and in force, all State insolvent laws are for 
the time being suspended. 

Congress is empowered to coin money and to 
regulate the value thereof and of foreign coin, and 



THE LEGISLATIVE DEPAETMENT. 43 

fix a standard of weights and measures. Under 
this grant of power, the right of the issue of the 
United States Treasury notes made legal tender at 
the beginning of the Civil War was seriously con- 
tested. At first a decision was had, under the pre- 
siding justiceship of Mr. Chase, who w^as Secretary 
of the Treasury when such notes were issued, de- 
claring such issue to be in contravention of the 
Constitution of the United States. This decision 
was subsequently reversed by a court which had 
in the interim become enlarged, and it was held 
that this issue of legal tender notes, made during 
the war, though not justified strictly under the 
power granted, was the exercise of a war power, 
and was naturally limited to a condition either of 
domestic insurrection or foreign invasion. While 
this decision stands, there is no cause to appre- 
hend that under the j)ower to coin money and to 
regulate its value, any addition will be made to the 
legal tender issue of the United States. 

Congress is empov/ered to provide for the punish- 
ment of counterfeitino; securities and current coin 
of the United States ; to establish post-offices and 
post roads ; promote the progress of science and 
useful arts by securing for limited times to authors 
and inventors the exclusive right to their respective 
writings and discoveries. Under this power the 



44 constitutio:n^al histoey. 

Patent Office was organized, and patent, trade mark, 
and copy-right laws passed, securing for limited 
periods of time the rights of inventors and authors 
in their respective inventions and books. 

Congress is empowered also to constitute tribu- 
nals inferior to the Supreme Court. In the third 
article creating the judicial power of the United 
States, such power is vested in the Supreme Court 
and in such inferior courts as Congress may from 
time to time ordain and establish. This article 
further provides that the judges, both of the 
Supreme and inferior courts, shall hold their office 
during good behavior, and shall at stated times 
receive for their services a compensation which shall 
not be diminished during their continuance in 
office. Under these two several sections of the 
Constitution of the United States, Congress, from 
1789 to 1876, from time to time, passed judiciary 
laws under which district courts were organized, 
which give to each State, substantially, one district 
judge (to Pennsylvania, however, two, to New York 
two, to Ohio two, to Illinois two), and circuit 
courts of nine circuits with one judge for each 
circuit. The judges of the Supreme Court of the 
United States when not sitting in banc likewise hold 
circuit courts. The Judicial department of the 
United States being created under a separate article 



THE LEGISLATIVE DEPARTMENT. 45 

of the Constitution, we will reserve our further 
examination into the organization of these courts 
and their jurisdiction until we reach that head. 

Congress has exclusive jurisdiction in defining 
and punishing felonies committed on the high 
seas, and offenses against the law of nations ; 
to declare war, and grant letters of marque 
and reprisal, and to make rules concerning 
captures on land and water ; to raise and support 
armies, but no appropriation of money to that end 
shall be for a longer term than two years ; to pro- 
vide and maintain a navy ; to make rules for the 
government and regulation of the land and naval 
forces ; to provide for calling forth the militia for 
executing the laws of the Union ; to suppress in- 
surrections and repel invasions ; to provide for 
organizing the army and disciplining the militia, 
and for governing such part of them as may be 
employed in the service of the United States, re- 
serving to the States respectively the appointment 
of the officers and the authority of training the 
militia according to the discipline prescribed by 
Congress. Under the power to make rules for the 
government of the land and naval forces, Congress 
has not the power to make any rules inconsistent 
with the position of the President of the United 
States as Commander-in-chief. The Constitution 



46 CONSTITUTIOISrAL HISTOEY. 

appoints ]ii*m tlie first officer of the army, and the 
laws of war give to the first officer powers, of which, 
under the guise of rules and regulations, he cannot 
be stripped. The manner in which the President 
makes his requisition for militia is by a call upon 
the Executive of a State, but he is not required to 
recognize the chief Executive of a State; he can 
make his call directly upon the militia officers. 
Although the States have the power to appoint 
officers for the militia, they are all outranked by 
the 'Commander-in-chief, when called by him to 
the service of the United States, and outranked by 
any general or other officer who may be appointed 
over them. 

The object had in view that no appropriation of 
money for army purposes shall be for a longer 
period than two years, is obviously that no Con- 
gress subservient to the Executive power shall 
create a standing army to be placed under the con- 
trol of the chief Executive of the Union and make 
one perpetual appropriation therefor. The neces- 
sity to ask from time to time the popular consent 
for army appropriations through the instrumen- 
tality of Congress, will, it is supposed, forever pre- 
vent an army being created which will be used in 
a manner opposed to the popular will. 

Congress has power to exercise exclusive legisla- 



THE LEGISLATIVE DEPARTMENT. 47 

tion in all cases whatsoever oyer such district, not 
exceeding ten miles square, as may, by a cession 
of particular States and the acceptance of Con- 
gress, become the seat of government of the United 
States, and to exercise like authority over all 
places purchased by the consent of the Legisla- 
ture of the State in which the same shall be, for 
the erection of forts, magazines, arsenals, dock- 
yards, and other needful buildings. Under this 
section of the Constitution the District of Columbia 
was ceded by the State of Maryland to the United 
States for the establishment of the seat of govern- 
ment at Washington on the Potomac, and Congress 
has exclusive jurisdiction over the government in 
that district. It provided the district with a mu- 
nicipal administration, which, however, in conse- 
quence of the abuses incident thereto, was abol- 
ished, and it is now governed directly by a 
committee .of Congress. 

Crimes committed within a fort, magazine, ar- 
senal, or dock-yard, or other building of the United 
States, are cognizable only in the United States 
courts within their respective districts. 

Congress is empowered to declare the punish- 
ment of treason, but no attainder of treason shall 
work corruption of blood, or forfeiture, except dur- 
ing the life of the person attainted. 



48 COl^STITUTIOTTAL HISTOEY. 

Congress is further empowered to make all laws 
whicli shall be necessary and proper for carrying 
into execution the foregoing powers, and all other 
powers vested by the Constitution in the govern- 
ment of the United States, or in any department or 
officer thereof. 

Although under this general grant of all power 
necessary to carry into execution the powers specif- 
ically enumerated, no new power has been granted, 
such a clause was, nevertheless, necessary for the 
purpose of preventing captious objections to the 
exercise of power by necessary implication arising 
from powers already granted, simply because such 
powers were not expressed in set terms. Under 
this grant of implied powers, it was held that 
Congress could charter a national bank, and that 
it could make appropriations for internal improve- 
ments. Under this grant of implied power, it was 
held by the Supreme Court of the United States 
that Congress might organize a form of State gov- 
ernment for the States which were in insurrec- 
tion, and which immediately after the Civil War 
for the time being had thereby lost their frame- 
work of government. 

Shortly after the adoption of the Constitution, 
by reason of the serious controversy which was 
then threatening war with France, the so-called 



THE LEGISLATIVE DEPAETMEIS^T. 49 

Alien and Sedition laws were passed, by the first 
of which the President of the United States was 
empowered to order any aliens out of the country 
whose presence was supposed to be dangerous to 
the community, and this in time of peace. The 
Sedition laws made it a crime for persons unlaw- 
fully to combine or conspire together with the 
intent to oppose any measure or measures of the 
United States, etc., or to write, print, utter, or 
publish, or cause or procure to be written, etc., 
any false, scandalous and malicious articles against 
the government of the United States, or either 
House of Congress, so as to stir up sedition, etc. 
These laws, although upheld by the judiciary, were 
so obnoxious to many of the States of the Union 
that their presence upon the statute book resulted 
in the passage of resolutions by the Legislatures 
of several States — Yirginia and Kentucky — by 
which they nullified such laws within their own 
States. Rather than force a conflict upon this 
point, the laws were repealed. 

Under the ninth section of the first article of the 
Constitution, restricting the powers of Congress 
and of the States, it is provided that the migra- 
tion or importation of such persons as any of the 
States now existing shall think proper to admit, 

shall not be prohibited by Congress prior to the 
3 



50 COI^STITITTIOTTAL HISTOET. 

year 1808, but a tax or duty may be imposed on 
such importation, not exceeding ten dollars for each 
person. This was an awkward and obscure pro- 
vision, adopted to prohibit Congress from prevent- 
ing the importation of slaves until 1808. In that 
respect it resembles the provision requiring the 
States to surrender fugitives who were held to 
service in other States. The framers of the Con- 
stitution were evidently extremely anxious not to 
use the term slave in the instrument, and so in 
several instances resorted to a para]3hrase. 

Congress was forbidden to suspend the writ of 
habeas corpus, except when, in case of rebellion or 
invasion, the public safety may require it. It has, 
however, been expressly held by the Supreme Court 
of the United States that the power to suspend the 
writ of habeas corpus exists only in the case of 
war or insurrection as to the district which is the 
theatre of war or insurrection, and not where 
the civil tribunals exercise full and undisputed 
authority. 

Congress is forbidden to pass any bill of attainder 
or ex post facto law. Although there is secured to 
each man accused of a crime the right to be con- 
fronted by his accusers, and to a trial by a jury, 
which would seem necessarily to forbid the passage 
of any bill of attainder, yet, to place the rights 



THE LEGISLATIVE DEPAETMEIN'T. 51 

of the people beyond doubt, it was deemed expe- 
dient to put in express terms that no man stall be 
convicted by bill, and that no man shall be con- 
victed of a criminal offense under a law passed 
subsequent to the committing of the act. Under 
this prohibition as to the passage of ex post facto 
laws, it has, however, been held that this does not 
forbid Congress from passing retroactive laws in 
civil matters. 

No capitation or other direct tax is permitted to 
be laid unless in proportion to the decennial census 
or enumeration. No tax or duty shall be laid on 
articles exported from any State. Under this clause 
of the Constitution, it was held by the Supreme 
Court of the United States that the export duty 
on cotton, levied after the close of the Civil War, 
was unconstitutionally levied. 

No preference is permitted to be given by any 
regulation of commerce or revenue to the ports of 
one State over those of another ; nor are vessels 
bound to or from one State obliged to enter, clear, 
or pay duties in another. No money is permitted 
to be drawn from the Treasury except in conse- 
quence of appropriations made by law, and a regular 
statement of account of the receipts and expendi- 
tures of all public money is required to be published 
from time to time. 



52 COI^STITUTIOl^AL HISTORY. 

No title of nobility is permitted to be granted by 
tlie United States, and no person holding any office 
of profit or trust under its laws is allowed, with- 
out the consent of Congress, to accept any present, 
emolument, office, or title of any kind whatever 
from any king, prince, or foreign state. No State 
is permitted to enter into any treaty, alliance, or 
confederation ; to grant letters of marque or re- 
prisal, coin money or emit bills of credit, or make 
anything but gold and silver coin a tender in pay- 
ment of debts ; nor to pass any bill of attainder, 
ex post facto law, or law impairing the obligation 
of contracts, or grant any title of nobility. 

Under this inhibition upon the powers of the 
States, the question which has been most fre- 
quently before the Supreme Court of the United 
States for interpretation has been, " What is a law 
impairing the obligation of contracts, and what 
contracts are under the protection of the Constitu- 
tion of the United States ? " While it is true that no 
one Legislature can tie the hands of a subsequent 
Legislature in matters strictly governmental, never- 
theless the Legislature of a State may pass a law 
which constitutes a contract with individuals or cor- 
porations binding upon the State. Such a law can- 
not be subsequently impaired, changed or modified 
to the detriment of the other contracting party 



THE LEGISLATIVE DEPAETMET^T. 53 

without the consent of such contracting party or 
its assigns. Under this head it has been held by 
the Supreme Court of the United States, that the 
State, as to a particular jDroperty, may forever 
surrender its taxing power. In a leading case, 
decided as early as 1819, known as the Dartmouth 
College case, it was held that the charter granted 
by a State to a college was a contract which the 
Constitution of the United States would not per- 
mit to be impaired. 

As the result of this decision restricting the powers 
of States to alter and modify franchises granted by 
them, the States hastened to alter their respective 
Constitutioi^s, so that it was thenceforth provided 
that all grants to corporations and all charters of 
corporations were subject to modification, alteration, 
and repeal at the will of the Legislature. This 
made the right of the Legislature to alter, modify, 
or repeal franchises granted to corporations, a part 
of the contract originally entered into with the 
corporation, and therefore the exercise of that 
right, however detrimental to the interests of the 
corporation, could not be said to be an impairment 
of the obligation of the contract embodied in its 
charter subsequently enacted to such constitutional 
amendment. When some of the Western States of 
the United States recently enacted laws by virtue 



54 COJSrSTITUTIONAL HISTOEY. 

of wMcL. commissioners were appointed to regulate 
the tariff of charges for freight and passengers to 
be charged by the railway corporations which had 
been chartered within the State, it was argned 
before the Supreme Court of the United States, by 
the bondholders and stockholders of the corpora- 
tion, that such legislation was an impairment of 
the original contract made with the corporation, 
and that under such contract the bondholders and 
stockholders acquired rights which could not be 
subsequently destroyed by a reassertion of sov- 
ereign power on the part of the State, which had 
been impliedly bargained away. In those States, 
however, the constitutions provided .that grants 
by the Legislature of corporate franchises were 
subject to modification and repeal, and the Supreme 
Court held that the bond and stock holders were 
without remedy. It has also been held that the 
remedial provisions of law by which the creditor 
could collect from his debtor within the respective 
States by judgment and execution a claim due him, 
could not be so altered as substantially to impair 
his rights ; that the remedial legislation of the 
State under which contracts are made form part of 
the contract, and that to alter them to the detri- 
ment of the creditor was an impairment of his 
rights. On the other hand, it has been held by the 



THE LEGISLATIVE DEPAETME:^rT. 55 

Supreme Court of the United States, in construing 
this provision of the Constitution, that a municipal 
corporation, being a subordinate branch of the 
sovereignty of the State, having delegated powers 
only, is subject to have its charter modified, altered 
or repealed at the will of the Legislature, and that 
such legislation never partakes of the nature of a 
contract. This is likewise true of all officers of 
the States whose salaries are fixed by the State, 
and whose functions are prescribed by State laws. 

It has also been held that a State cannot by 
contract bargain away the essential powers of 
sovereignty. The State, therefore, cannot deprive 
itself of the right to appropriate private property 
to public use under the power of eminent domain. 

Even exclusive privileges in the nature of legis- 
lative contracts are upheld. If the State, for 
instance, grants a privilege to a corporation to 
build a bridge, and couples such grant with an 
agreement not to charter a bridge within a certain 
given point, the State is held to such a contract 
after the bridge is built. On the other hand, 
whatever may ap]oropriately be deemed to fall 
within police powers cannot be contracted away. 
A man who buys a large stock of liquors under 
existing laws by which no license is required, 
cannot claim as against the State that his contract 



56 CONSTITUTIONAL HISTOEY. 

is impaired because the State subsequently either 
restricts the sale or imposes conditions upon the 
business in whicli lie is engaged. 

No State is permitted, without the consent of 
Congress, to lay any imposts or duties on imports 
or exports except such as may be absolutely neces- 
sary for executing its inspection laws, and the net 
produce of all duties and imposts laid by any State 
on imports or exports shall be for the use of the 
Treasury of the United States, and all such laws 
shall be subject to the revision and control of 
Congress. 

No State is permitted, without the consent of 
Congress, to lay any duty of tonnage, keep troops 
or ships of war in time of peace, enter into any 
agreement or contract with another State or with 
a foreign power, or to engage in war unless actually 
invaded or in such imminent danger as will not 
admit of delay. 

Under these provisions it has been held that an 
emigrant tax imposed by State law upon vessels 
entering the port of New York, of one dollar per 
head, collected from ships which brought the 
emigrants, and the purpose and object of the 
expenditure of which head-money was undoubt- 
edly of an extremely useful character to both 
emigrants and ship owners, was an unconsti- 



THE LEGISLATIVE DEPAETMENT. 57 

tutional impost. The Emigration Commission, 
wliich for many years in the City of New York 
performed a very praiseworthy function in protect- 
ing the emigrants, from the moment of their land- 
ing until their departure from the City of New 
York, from frauds and swindles of every description 
which had theretofore been practiced upon them, 
providing hospitable accommodations for them, 
and for a year after their landing exercising some 
degree of guardianship in relation to their affairs, 
had its usefulness, after thirty years' duration, 
suddenly endangered by a decision of the Supreme 
Court of the United States adverse to the levy of 
the fund which supported it. 

Full faith and credit is required to be given in 
each State to the public acts, records, and judicial 
proceedings of every other State, and Congress is 
required by general laws to prescribe the manner 
in which such acts, records, and proceedings shall 
be proved, and the effect thereof. Under this 
section exemplification acts exist under which the 
acts and records of the several States are made 
evidence in the courts of law of other States. 

The citizens of each State are, under the Consti- 
tution, entitled to all the privileges and immunities 
of citizens in the several States. Under this clause 
special license laws, by which citizens of one State 



58 COI^STITUTIONAL HISTOEY. 

were proMbited from seeking trade in other States 
except on taking ont licenses which were not re- 
quired to be taken out by the citizens of the State, 
were held to be unconstitutional. In some of the 
courts of the United States, however, it has been 
held that by the term citizens of each State who 
are entitled to such provisions is meant natural 
citizens, and not artificial creations like corpora- 
tions, and that, therefore, a State is at liberty to 
impose terms upon corporations of other States 
as a condition of their doing business therein 
which they do not impose upon their own corpora- 
tions. 

A person charged in any State with treason, 
felony, or other crime, who shall flee from justice 
and be found in another State, shall, on demand 
of the Executive authority of the State from 
which he fled, be delivered up to be removed to 
the State having jurisdiction of the crime. This 
creates without treaty between the States a condi- 
tion of extradition by which all criminals are 
delivered by one State to another, so that such 
criminals can be tried within the State where the 
crime has been committed. 

The constitutional provision that no person 
held to service or labor in one State under the 
laws thereof, escaping into another, shall, in con- 



THE LEGISLATIVE DEPAETMEIS^T. 59 

sequence of any law or regulation tlierein, be dis- 
charged from such service or labor, but shall be 
delivered up on claim of the party to whom such 
service or labor may be due, was mainly applicable 
to a condition of slavery, now happily passed away, 
when negro bondmen escaped from the Southern 
to the Northern States, and is now useful only in 
cases of apprenticeship, for which it is not likely 
to be invoked. 

The United States is required to guarantee to 
every State in the Union a republican form of 
government, and to protect each of them against 
invasion, and on application of the Legislature, or 
of the Executive when the Legislature cannot be 
convened, against domestic violence. 

The provision requiring that full faith and credit 
shall be given in each State to the acts, etc., of 
every other State has for its object to prevent any 
such weakening of the bonds of the Federal Union 
as might follow from the States disregarding what 
was due to courtesy and comity when their respect- 
ive proceedings should come under consideration, 
and thus opening anew the controversies and ques- 
tions which, in the jurisdiction having properly and 
primarily the control of them, had once been 
determined. This clause relates only to judgments 
in civil actions, and not to judgments on criminal 



60 COI^STITUTIONAL HISTOEY. 

prosecutions. In the latter respect the relation of 
the States to each other is wholly unaffected by the 
Constitution. 

The clause giving to the citizens of each State all 
the privileges and immunities of citizens in the 
several States, was not intended to give the laws in 
one State the slightest force in another State. It 
simply secures to the citizens of each State in every 
other State, not the laws or peculiar privileges 
which they may be entitled to in their own State, 
but such protection and benefit of the laws of every 
and any other State as are common to the citizens 
thereof in virtue of their being citizens. 

Under the section making it imperative upon the 
United States to guarantee to every State in the 
Union a republican form of government, a ques- 
tion was raised by the friends of woman's suffrage, 
before the Supreme Court of the United States, 
whether a government that excluded women from 
the suffrage was a republic, and the court held 
that it was. 

When the senators and representatives of a State 
are admitted to the council of the Union, the 
authority of the government under which they are 
appointed, as well as its republican character, is 
recognized by the proper constitutional authority. 

Congress has power to dispose of and make all 



THE LEGISLATIVE DEPAETMENT. 61 

needful rules and regulations respecting the terri- 
tory or otlier property belonging to the United 
States. Under this grant of power it has been held 
that Congress has the absolute right to prescribe 
the times, the conditions, and the mode of trans- 
ferring the public domain, or any part of it, and to 
designate the persons to whom the transfer shall 
be made ; that no State legislation can interfere 
with this right, or embarrass this exercise, and that 
no State law, whether by limitation or otherwise, 
can defeat the title of the United States to public 
lands within the limits of the State. 

By the sixth article of the Constitution, it is pro- 
vided that all debts contracted and engagements 
entered into before the adoption of the Constitution 
shall be as valid against the United States under 
the Constitution as under the Confederation. 

The second section provides that the Constitu- 
tion and the laws of the United States which shall 
be made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority 
of the United States, shall be the supreme law of 
the land, and the judges in every State shall be 
bound thereby, anything in the constitution or 
laws of any State to the contrary notwithstanding. 
This supremacy gives to the United States Govern- 
ment, as contradistinguished from a State Govern- 



62 CONSTITUTIO]N^AL HISTOEY. 

ment, its true sovereignty. Without it tlie Union 
could not maintain itself. There would have been 
a constant clashing of interests and of laws, and 
endless interpretations by the several State courts 
conflicting with each other as to the meaning 
of clauses of the Constitution of the United States. 
The declaration of supremacy of the Constitution 
of the United States and the laws thereunder, 
and the organization of the Supreme Court of the 
United States to determine all questions arising 
under the Constitution of the United States, or 
under a United States law, or when the Constitution 
of the United States, or the United States statutes 
is invoked, or is called into question, has created 
a homogeneity of decisions and interpretation 
which gives stability to and respect for its laws. 

A treaty is regarded as equivalent to an act of 
Congress, and has precisely the same validity. 
Congress has, therefore, the power by a subse- 
quent law to repeal clauses in a treaty if the sub- 
sequent enactments are in necessary conflict with 
the treaty. It is only the foreign governments, 
the compact with which has been violated, which 
has a ground of complaint for an infraction of the 
treaty, not the citizens of the United States. 

Although the Constitution thus places the United 
States government and its legislation above that 



THE LEGISLATIVE DEPAETMEjS^T. 63 

of States, it nevertlieless takes from the States but 
three cases in which they have no power to legis- 
late. First, where they are expressly jDrohibited 
from legislation ; second, where exclusive power is 
expressly vested in the United States ; and third, 
where power vested in the United States is in its 
nature exclusive. 

It has now been expressly held by the Supreme 
Court of the United States, that when a State be- 
comes one of the United States, she enters into an 
indissoluble relation. The act which consummates 
her admission into the Union is something more 
than a compact ; it is the incorporation of a new 
member into the political body; it is final. The 
union is as complete, as perpetual, and as indis- 
soluble as the union betweeu the original States. 

The senators and representatives, and the 
members of the several State Legislatures, and all 
Executive and Judicial officers both of the United 
States and of the several States, are required by 
the Constitution to be bound by an oath or affirma- 
tion to support the Constitution ; but no religious 
test is ever required as a qualification for any 
office or public trust under the United States. 
Shortly after the war of the rebellion a new oath 
was prescribed by Congress to all office-holders, 
known as the " iron-clad " oath, by which the 



64 CO:^rSTITUTIO]S^AL histoey. 

officer swore that lie had not aided or abetted the 
rebellion in any form or manner, and abjured the 
heresy of secession. This oath was, after solemn 
argument, declared to be an unconstitutional im- 
position as a test for office, as the Constitution 
required nothing further than an oath to support 
the Constitution. 

Shortly after the adoption of the Constitution a 
series of amendments were proposed, and by the 
States in due form ratified, which limited the 
powers of Congress, and the first eleven of which 
were in their nature a sort of Declaration of Rights 
of the people against arbitrary interference by the 
federal authority, and have hereinbefore been com- 
mented upon. 



CHAPTER III. 

THE EXECUTIVE POWER. 

The Executive power of the Federal Government 
under the Constitution of the United States is 
vested in a President, who is to hold his office for 
the period of four years, and who, together with 
the Vice-President chosen for the same term, is 
elected by an Electoral College composed of electors 
of each State equal to the whole number of senators 
and representatives to which the State is at the time 
of such election entitled in Congress. The manner 
of the election of the members of the Electoral 
College is determinable by the Legislatures of the 
several States, with the limitation only that no 
senator or representative, or person holding an 
office of trust or profit under the United States, 
shall be appointed an elector. Under the Consti- 
tution, Congress was vested with power to deter- 
mine the time of choosing the electors and the day 
on which they shall give their votes ; such day, 

however, to be the same throughout the United 

65 



66 COI^STITUTIOJTAL HISTOEY. 

States. By an amendment to the Constitution, 
adopted in September, 1804, these electors were 
constituted into electoral colleges, to meet not as 
one body, but in their respective States, and to vote 
by ballot for President and Yice-President, one of 
whom at least shall not be an inhabitant of the 
same State with themselves. The ballots for Pres- 
ident shall be separate from those for Vice-Pres- 
ident, and after having made distinct lists of all 
persons voted for as President and of all persons 
voted for as Yice-President, and of the numbers of 
votes for each, the lists are required to be signed 
and certified and transmitted sealed to the seat of 
government of the United States, directed to the 
President of the Senate. The President of the 
Senate then shall, in the presence of the Senate 
and House of Representatives, open all the certi- 
ficates, and the votes shall then be counted. The 
person having the greatest number of votes for 
President shall be President, if such number be a 
majority of the whole number of electors appointed. 
If no person have such majority, then from the 
persons having the highest number of votes, not 
exceeding three, on the list thus voted for as Presi- 
dent, the House of Eepresentatives shall immedi- 
ately choose by ballot the President. When that 
contingency arises the members of the House of 



THE EXECUTIVE POWEE. 67 

Kepresentatives cease to vote in tlieir individual 
capacity, but vote by States, eacli delegation or a 
majority of each delegation, casting the vote of the 
State. For this purpose the quorum to constitute 
the House of Representatives must consist of a 
member or members from two-thirds of the States, 
and a majority of all the States is necessary to a 
choice. 

In the event of the House of Representatives 
failing to choose a President, when the right of 
choice thus devolves upon them, before the fourth 
day of March next following the election, then the 
Vice-President shall act as President, as in case 
of the death or other constitutional disability of 
the President. 

The person having the greatest number of votes 
as Yice-President shall be the Yice-President, if 
such number be a majority of the whole number of 
electors. If no person has a majority, then from 
the two highest numbers on the list the Senate 
shall choose the Yice-President. A quorum for 
this purpose shall consist of two-thirds of the 
whole number of senators, and a majority of the 
whole number shall be necessary to a choice. No 
person is eligible for the position of President 
unless he be a natural-born citizen or a citizen of 
the United States at the time of the adoption of 



68 CONSTITUTIOI^AL HISTORY. 

tlie Constitution. He must be at least thirty-five 
years of age, and liave been fourteen years a resi- 
dent within the United States. 

The difference between the amendment and the 
Constitution as it originally stood, lies mainly in 
the fact that under the original Constitution the 
electors voted by ballot for two persons, and that 
they made a list of all the persons voted for and the 
number of votes for each, and the person having 
the highest number of votes, if such number was a 
majority of the whole number, became the Presi- 
dent, and the next person having the highest 
number of votes became the Yice-President. The 
idea which the framers of the Constitution enter- 
tained as to the manner in which these electoral 
colleges should exercise their function was that 
the people of each State would, in such manner as 
the Legislature directed, select the wisest and best 
men in the State to determine upon the fittest and 
best citizens for the offices of President and Vice- 
President respectively. Alexander Hamilton says 
in the Federalist, '' It was desirable that the sense 
of the people should operate in the choice of the 
persons to whom so important a trust was to be 
confided. This end will be answered by commit- 
ting the right of making it not to any preestab- 
lished body, but to men chosen by the people for 



THE EXECUTIVE POWEE. 69 

the special purpose at a particular juncture. It 
was equally desirable that the immediate election 
should be made by men most capable of analyzing 
qualities adapted to the station. ... A small 
number of persons selected by their fellow-citizens 
from the general mass would be most likely to 
possess the information and discernment necessary 
for so complicated an investigation." 

The end which was intended to be achieved by 
the non-merger of the State electors in any general 
body, was to preserve State action to such a degree 
as to prevent State jealousy in the selection of the 
President, so that each State should feel that in 
the performance of so important a task as the 
selection of a President of the United States it pre- 
served its separate action ; secondly, by this sjs- 
tem of double election to secure the best possible 
result as to persons to fill the important offices of 
President and Yice-President. 

At a very early period after the adoption of the 
Constitution the practical result of this method of 
selection was the very opposite from that which 
was intended by the framers of that instrument. 
National conventions of parties predetermined 
who the nominees of the party should be for such 
offices, and the election of electors under the forms 
of the Constitution at a subsequent period was 



70 COITSTITUTIOT^AL HISTOEY. 

merely a metliod whereby to test the party strength 
in the several States ; the electors to be yoted for 
were likewise to be determined by a party conven- 
tion within the State ; and the majority in any 
State would elect either Federal or Eepublican 
electors, subsequently Whig or Democratic, and 
at a still later period Republican or Democratic 
electors, by a majority vote which determined 
which party should prevail in each particular 
State. The electors so elected became and are 
mere registering machines to cast the vote of the 
party in conformity with the nomination of the 
party ; and so strong are party ties in the United 
States, that there is no instance of any elector so 
elected disregarding his obligation to his party 
and exercising an independent choice for President 
of the United States. Therefore, after the Novem- 
ber election preceding the March when the Presi- 
dent of the United States is to be inaugurated, and 
considerably preceding the period of the meeting 
of the electoral colleges, the .selection of electors 
is deemed the conclusion of the contest, and when 
such electors are elected, who is to become the 
President and Yice-Presidenfc of the United States 
is immediately thereupon declared and known. 
The subsequent meeting of the electoral colleges 
on the first Wednesday in December following the 



THE EXECUTIVE POWER. 71 

Tuesday after the first Monday of November, 
wlien the election takes place, has degenerated 
into a mere matter of form, to which nobody pays 
anything more than a mere passing attention. The 
Eevised Statutes of the United States, sections 132- 
151, provide a uniform time for the choice of the 
electors, their number, the manner for filling vacan- 
cies, the certificates for the electors, the manner 
of making their returns, their compensation, a 
provision for the contingency of a new election in 
the event of the Presidency and Yice-Presidency 
both becoming vacant, and a provision that, in the 
event of the resignation of the President or Yice- 
President, it shall be in writing. 

The manner of counting the electoral vote has 
thus far been determined by joint resolution of 
the House of Representatives and the Senate. 

Immediately after the election of 1876, a contro- 
versy arose as to whether Mr. Tilden or Mr. Hayes 
had a clear majority of the electoral vote, and 
when the electoral colleges subsequently met in 
their respective States, two returns came from 
several States, and ^by the counting of either one 
of those electoral returns, or the rejection of both, 
the result of the election would be changed. The 
country was considerably disturbed by the then 
condition of affairs ; grave suspicions were enter- 



73 CONSTITUTIONAL HISTOET. 

tained that fraudulent electoral colleges were con- 
stituted by violently disregarding or rejecting votes 
which should properly have been registered for 
the successful candidate, and the country was sup- 
posed by many to be upon the eve of another civil 
strife as to the Presidential succession, when an 
extra-judicial tribunal was organized, known as the 
Electoral Commission, composed of five Judges of 
the Supreme Court of the United States, five mem- 
bers of the House, and five Senators, from both 
parties, fifteen in all, whose determination upon the 
question was accepted as final. It is well known, that 
by a majority of one vote Mr. Hayes was declared 
elected, and duly inaugurated. This condition of 
affairs is unlikely ever to happen again, because the 
semi-territorial government to which some of the 
States which theretofore had been in rebellion 
were subjected, created a condition of affairs in 
such States favorable to frauds in election returns, 
and which made it doubtful for a time whether 
the nominal State government was really represent- 
ative of the people of the State, and the acts of 
the government officials were regarded with grave 
suspicion by both parties. 

The Kevised Statutes also provide that the time 
for which a President and Yice -President shall be 
elected shall in all cases commence on the fourth 



THE EXECUTIVE POWEE. 73 

day of Marcli next succeeding the day on which 
the votes of the electors have been given, and that 
that term shall be four years ; that the compensa- 
tion of the President shall be $50,000 a year, and 
that of the Yice-President $10,000; the increase of 
the President's salary from the amount originally 
fixed by the act of 1793 at $25,000, having been 
made in March 1873. It also contains a provision 
authorizing the appointment, and limits the expen- 
diture of the President's official household. 

The functions of the President, as defined in the 
second article of the Constitution, make him Com- 
mander-in-chief of the army and navy of the 
United States, and of the militia of the several 
States when called into the actual service of the 
United States ; give him power to grant reprieves 
and pardons for ofi'enses against the United States 
except in cases of impeachment only, and authorize 
him to require the opinion in writing of the prin- 
cipal officers in ea.ch of the Executive departments 
upon any subject relating to the duties of their 
respective offices. Power is given him, by and 
with the advice and consent of the Senate, to make 
treaties, provided two-thirds of the senators con- 
cur ; with him rests the nomination, and by and 
with the advice and consent of the Senate, the 

appointment of all ambassadors, all public minis- 
4 



74 CO^STITUTIOI^AL HISTOEY, 

ters and consuls. He also appoints the Judges 
of the Supreme Court, and all other officers of the 
United States the appointment ox which is not 
otherwise provided for in the Constitution, and 
which may subsequently be established by law. 
Power is, however, reserved to Congress by law to 
vest the appointment of such inferior officers as 
they may think proper in the President alone, in 
the courts of law, or in the heads of departments. 
The President is also empowered to fill all vacan- 
cies that may happen during the recess of the 
Senate, by granting commissions which shall 
expire at the end of the next session. He is re- 
quired from time to time to give to Congress infor- 
mation of the state of the Union and to recom- 
mend to their consideration such measures as he 
shall judge necessary and expedient, and he may 
on extraordinary occasions convene both Houses, 
or either of them, and in case of disagreement 
between them as to the time of adjournment he 
may adjourn them to such time as he may think 
proper. The President receives ambassadors, dip- 
lomatic agents and other public ministers, and is in 
general terms entrusted with the duty to see that 
the laws are faithfully executed and to grant com- 
missions to all the officers of the United States. 
Provision is made for the removal of both the 



THE EXECUTIVE POWEE. 75 

President and Yice-President and all civil officers 
of tlie United States on impeachment for and con- 
viction of treason, bribery, or other high, crimes 
and misdemeanors. He has also the high and im- 
portant prerogative to veto all legislation of Con- 
gress, which veto power is, however, subjected to 
the condition that in the event of his failure to 
approve a bill he shall return it with his objection 
to the House in which it shall have originated, 
which shall enter the objection at large upon its 
journal and proceed to reconsider the bill. If, 
after such reconsideration, two-thirds of the House 
shall agree to pass the bill, it shall be sent, together 
with the objections, to the other House, by which 
it shall likewise be reconsidered, and if approved 
by two-thirds of that House it shall become a law 
notwithstanding the Presidential veto. In all such 
cases the votes of the Houses are determined by 
yeas and nays, and the names of the persons voting 
for and against the bill are entered upon the 
journal of each House. Should the President fail 
to return the bill, or fail to sign it within ten days 
after it shall have been presented to him, it be- 
comes a law as though he had signed it, unless 
Congress by adjournment prevents its return, in 
which case it does not become a law without the 
President's signature. 



76 CO^STITUTIOIN^AL HISTOEY. 

The power to make appointments to office by 
and with the advice and consent of the Senate has, 
in practice, also largely deviated from the inten- 
tions of the draftsmen of the Constitution. By 
giving the President this power, it was intended to 
place upon him the responsibility of the nomina- 
tion, and to give the Senate the power to consider 
the fitness of the nomination by a canvass of the 
merits of the nominee, so as to act as ^ check upon 
the President's personal favoritism, nepotism, 
lack of information, or any other influence result- 
ing in an injudicious nomination. When, however, 
by the growth of the population and the enor- 
mous increase of federal offices consequent upon 
such growth, it became practically impossible for the 
President to arrive at a judicious conclusion as to 
the vast number of appointments which had to 
be made with each change of administration, under 
the pernicious doctrine that the prevailing party 
had a right to all the federal offices, a habit 
at first grew up of asking the* advice of the sen- 
ators of the States in which the officers were to 
exercise their functions as to the proper nominee ; 
and this habit in time grew into a custom, which 
gave to the senators, as they supposed, the right 
to suggest to the President the names of the 
persons who were to exercise federal functions 



THE EXECUTIVE POWEE. 77 

witliin tlie State from which they were commis- 
sioned. This became so established a rule of 
action on the part of the Presidents that, during 
President Garfield's administration, the two sena- 
tors from New York resigned their seats in 1881, 
because what they termed " the courtesy of the 
Senate " — a euphonious name which was given to 
this abuse which had arisen under the Constitu- 
tion — had been disregarded in their cases, and the 
Collector of the Port of New York had been 
appointed by the President without consultation 
with them, and in disregard of their wishes. An 
active movement is now proceeding in the United 
States to institute some system of civil service re- 
form which will relieve the President from the neces- 
sity of making nominations to the Senate of a vast 
number of officers which are periodically to be 
appointed under the " spoils " system, and which, 
from the neccessities of the situation, com- 
pels the nominations of inefficient men by the 
President if he acts entirely upon his own judg- 
ment, in disregard and without consultation with 
the senators from all the States in advance of the 
nomination, because it is impossible for him to 
know much of the persons thus to be nominated, 
or places him entirely in the hands of the senators 
of the several States for suggestion and advice as 



78 COlSrSTITUTIOIN^AL HISTOEY. 

to the nominations, and tlms constitutes tlie sena- 
tors the heads of the great political machines of 
the States, and who are, instead of the President, 
the fountains of federal honor and office within 
their respective States. The civil service reform 
movement, therefore, in the United States will, if 
successful, deal a blow at the " spoils " system, 
which makes each Presidential election a raffle 
for one hundred thousand offices, and the in- 
cumbents a vast, hungry horde of office-holders, 
upon whom assessments for campaign funds can be 
levied by the party in power, which are promptly 
paid, because the incumbents know full well that 
in the event of a change of administration, par- 
ticularly if that change of administration brings 
into power the opposition party, their offices must 
be vacated. This movement is also an attack upon 
the " courtesy of the Senate," which constitutes 
senators, instead of mere judges of proper or im- 
proper nominations, a cabal or junta to dictate nomi- 
nations to the President, and, in the event of the 
failure of the President to accept such dictation, to 
decline confirmation, irrespective of the merits of 
the nominees. 

Each term of the Presidental office begins on the 
fourth day of March succeeding the election, and 
continues for a period of four years. The people of 



THE EXECUTIVE POWEE. 79 

the United States are at liberty to reelect the in- 
cumbent if they see fit : there is no constitutional 
inhibition upon them in regard to the number 
of times he may be reelected. But as Wash- 
ington declined a nomination after his second 
term had expired, and pointed out, in so declining, 
the impropriety of repeated elections of the same 
officer, however popular, it has become part of 
the unwritten law of the United States that the 
Presidential term shall not be extended beyond 
eight years. 

In case of the removal of the President from 
office, or of his death, resignation or inability to 
discharge its powers and duties, it is provided that 
the same shall devolve upon the Yice-President. 
And it is further provided that Congress may 
by law provide for the case of the removal, 
death, resignation or inability of both Presi- 
dent and Yice-President, and declare what officer 
shall then act as President, and such officer 
shall act accordingly until the disability be re- 
moved or a President be elected. Congress did 
provide, that in such a case the President of 
the Senate, or, if there be none, the Speaker 
of the House of Representatives for the time 
being, shall act as President until the disability is 
removed or a President elected ; and in the event 



80 COI^STITUTIOI^AL HISTOEY. 

of botli the office of President and Yice-President 
becoming yacant, tlie Secretary of State sliall 
thereupon cause a notification to be made to the 
Executive of every State, and a new election shall 
thereupon be ordered. 

There is no provision for succession, in the event 
of there being no President of the Senate and no 
Speaker of the House of Representatives. The 
death of President Garfield, at a time when there 
was neither President of the Senate nor Speaker 
of the House of Representatives, created a case 
when, in the event of the death of President 
Arthur before the Senate could be convened, no 
succession for the Presidency had been provided 
for. It is therefore clear that a further pro- 
vision must be made by law for such a possible 
contingency. 

Another question which arose during the pro- 
longed disability of President Garfield, inter- 
mediate between his wounding and his death, 
is one which has never yet received complete 
and satisfactory solution, and may create trouble 
unless anticipated by lav/. The Constitution 
provides that, in the event of a President- 
ial disability, the office of President shall 
devolve upon the Yice-President ; but there is 
no provision that such a devolution of the office 



THE EXECUTIVE POWEE. 81 

shall be simply temporary in character, and that 
the Yice-President shall resign the same when 
the disability ceases to exist. The great per- 
sonal popularity of President Garfield, the hope 
of speedy recovery from his disability, and the 
widespread sympathy for his condition, made it 
inexpedient for the Yice-President to claim the 
office of President during this inability of the 
President to perform the duties of his office. But 
had the Yice-Presidency then been held by a per- 
son of less delicacy of sentiment and appreciation 
of j)opular opinion, the questions of who should 
determine when an inability arises, and for what 
term the Yice-President should hold office in the 
event of the disability being removed, might have 
become very serious ones. These recent events, 
therefore, point to some further amendments of 
the Revised Statutes in relation to the Presidential 
office. 

The President is not subject in the exercise of 
his discretion to any judicial interference. The 
Supreme Court of the United States cannot com- 
pel his signature to any act, nor cause him to 
refrain from doing any act. There is but one way 
to reach an abuse of his authority, and that is by 
impeachment. There is but one example in the 
history of the United States of an impeachment of 



82 COl^STITUTIOl^AL HISTOEY. 

the President, and that is the impeachment of 
Andrew Johnson. 

The House has the sole power of impeachment. 
The Senate has the sole power to try impeach- 
ments. When sitting for that purpose, they are on 
oath or affirmation. When the President of the 
United States is tried the Chief Justice of the 
United States presides, and no conviction can be 
had without the concurrence of two-thirds of the 
members present. The English precedents are 
followed in the trial by impeachment of the House 
appointing triers, and the impeached officer having 
counsel, either assigned to him or appointed by 
him, to try the cause in his behalf. 

Until 1868 the President had the power to 
create vacancies of the offices of heads of depart- 
ments and their first assistants, »by demanding 
resignations and filling vacancies temporarily until 
the Senate's consent could be obtained. In con- 
sequence of the conflict which then existed be- 
tween the Legislative and Executive departments, 
eventually resulting in the impeachment of Presi- 
dent Johnson, an act was passed preventing the 
President from making removals from office and 
making temporary appointments, except in the 
actual cases of death, voluntary resignation, absence 
or sickness of the chief of any bureau. 



THE EXECUTIVE POWEE. 83 

Under the implied powers wliicli the President 
of the United States has received by the general 
investiture of power as the chief Executive officer 
of the United States, may be enumerated the fol- 
lowing : As Commander-in-Chief of the Army and 
Navy of the United States, he has power to 
engage in hostilities, to institute a blockade, and 
to authorize captures and condemnations on the 
high seas. He has power to recognize a State 
Government in so far as to recognize whether the 
government organized in a State is the duly con- 
stituted government of that State. He has power 
to protect aliens, as the care of our foreign rela- 
tions is committed to . him ; to remit forfeitures 
under his pardoning power ; to order a nolle 
prosequi to be entered at any stage in a criminal 
proceeding in the name of the United States ; to 
order a new trial on the sentence of a court 
martial ; and in time of war to suspend the writ 
of habeas corpus in any district where for the time 
being the civil authorities are powerless. He is 
authorized by the Constitution to appoint heads of 
departments in his official household. This is 
likewise done by and with the advice and consent 
of the Senate. This official household constitutes 
the Cabinet. The term Cabinet is not known to 
the Constitution of the United States, and has 



84 CONSTITUTIONAL HISTOEY. 

been adopted in American political parlance in 
imitation of the' term for tlie ctiiefs of the depart- 
ments of the English Goyernment. The Execu- 
tive officers, who are the more immediate advisers 
of the President, and in the selection of whom 
greater latitude is allowed by the Senate than in 
that of any other officer, are the Secretary of State, 
Secretary of Interior, Secretary of the Treasury, 
Secretary of War, Secretary of Navy, Postmaster 
General, and Attorney General. 

The Departments respectively under the direc- 
tion of the secretaries are known as the Depart- 
ment of State, the Department of War, Department 
of the Treasury, Department of the Navy, Depart- 
ment of the Interior, the Post-office Department, 
and that under the Attorney General as the 
Department of Justice, and a Department of Agri- 
culture, the head of which is, however, not a 
Cabinet officer. 

The duties of the several Departments of State 
are by law dejB.ned to be correspondences, com- 
missions, and instructions to or with public 
ministers and consuls from the United States ; 
carrying on of negotiations with public ministers 
of foreign states or princes, or memorials or other 
applications of foreign public ministers or other 
foreigners, or such other matters respecting 



THE EXECUTIVE POWEE. 85 

foreign affairs as the President of the United 
States shall assign to the department, and the 
Secretary shall conduct the business of the depart- 
ment in such manner as the President shall 
direct. 

To the Secretary of State is also entrusted the 
custody and charge of the seal of the United States 
and the seal of the Department of State. It is his 
duty to promulgate the laws ; to publish the same ; to 
give notice of intended or proposed amendments to 
the Constitution of the United States ; to give notice 
of the adoption of constitutional amendments, and to 
promulgate the same ; to lay before Congress, within 
ten days after the commencement of each regular 
session, a statement of the returns of collectors and 
of foreign agents ; a report of the foreign regulations 
of commerce and other commercial information, and 
of consular fees ; and a synopsis of such of his com- 
munications to and from diplomatic officers as he 
may deem expedient to give for public informa- 
tion ; a full list of all consular offices, &c. 

The Department of the Treasury is charged by 
law with the duty of adjusting all claims and 
demands whatsoever by the United States or 
against them ; to keep an account of all appropria- 
tions, receipts and expenditures, and make esti- 
mates of the expenses of all the departments of 



86 COI^STITUTIOlSrAL HISTOEY. 

the Government ; to keep accounts of all receipts 
of internal revenue, and the accounts of all officers 
collecting revenue ; to keep an account of all ex- 
penditures for contingent expenses ; an account of 
all expenditures for furniture, repairs for bureaus ; 
and an account of all the funded indebtedness. 
The Secretary signs all warrants on the Treasury 
of the United States, and is charged with the duty, 
from time to time to digest and prepare plans for 
the improvement and management of the revenue, 
and for the support of the public credit. It is his 
duty to prescribe the forms of keeping and render- 
ing all public accounts and making returns ; he is 
charged with the collection of all duties on imports 
and tonnage ; and all accounts of the expenditures 
of public moneys are to be settled within each fis- 
cal year, except where the distance of the places 
where such expenditure is to be made shall make 
further time necessary. 

It is his duty to interpret the revenue and 
custom laws of the country, and to make proper 
regulations not inconsistent with law in relation to 
such collection. He is charged with the duty of 
preparing proper statistics showing the amounts of 
goods that are imported and exported ; and also 
what regulations he has made in relation thereto. 
He is authorized to receive deposits of gold and 



THE EXECUTIVE POWEE. 87 

to give certificates therefor, and tlie coin of the 
country is placed under his supervision and con- 
trol. He is authorized to appoint disbursing 
agents ; to appoint persons who are authorized to 
recover moneys due to the United States, and to 
see to it that the revenue laws of the country are 
enforced. The Secretary of the Treasury is re- 
quired to make an annual report to Congress, 
which report shall contain, according to the pro- 
visions of law, an estimate of the public revenue 
and public expenditure for the fiscal year then cur- 
rent ; plans for improving and increasing the 
revenues from time to time, for the purpose of 
giving information to Congress, and adopting 
modes of raising moneys requisite to meet the 
public expenditures ; he is also to report all con- 
tracts for the supplies of the service which have 
been made by him under his direction during the 
year preceding, and also a statement of all expendi- 
tures of moneys appropriated for the discharge of 
miscellaneous claims not otherwise provided for, 
and paid by the Treasury ; he is to report to Con- 
gress his rules and regulations in relation to the 
appraisal of goods imported into the United 
States, and to make a report showing the value of 
such goods, and how much duty was collected; a 
complete statement of the amounts collected from 



88 COI^STITUTIOITAL HISTOEY. 

seamen and the amounts expended for seamen ; the 
amount expended at each Custom-house and the 
number employed thereat. A Bureau of Statistics 
is created under his direction and control, which 
is required to collect statistics of the agricultural, 
manufacturing, and domestic trade ; of the currency 
and banks of the several States and Territories ; 
and the Secretary is required to accompany his 
annual statement of public expenditure with re- 
ports which may be made to him by the auditors 
charged with the examination of the accounts of 
the Department of War and the Department of 
Navy respectively, showing the application of 
moneys appropriated for those departments for the 
respective year. He is required to lay before 
Congress annually an abstract of the separate 
amounts of moneys received from internal duties 
or taxes in each of the respective States and 
Territories or election districts of the United 
States. He is also required to cause an annual 
report of statistics of commerce and navigation 
to be prepared by the chief of the Bureau of 
Statistics, to be likewise laid before Congress an- 
nually ; to report the number of persons employed 
in the Coast Survey and the business connected 
therewith, and the amount of compensation of every 
kind paid therefor. Every quarter he is required 



THE EXECUTIVE POWER. 89 

to publish in some newspaper at the seat of 
Government a statement of the whole receipts of 
such quarter, and the whole expenditures of such 
quarter ; also showing the amount to the credit of 
the Treasury, in the sub-Treasuries, in the differ- 
ent banks, in the Mint, and other depositories ; the 
amount for which drafts have been given, and 
those remaining unpaid ; and the balances remain- 
ing subject to draft ; likewise to note all changes 
made in the public depositories, and the reasons 
for such change. 

The law provides for the appointment of con- 
trollers, auditors and treasurers in the department, 
and specifies their duties. It also provides for the 
appointment of registers. Commissioners of Cus- 
toms, Commissioners of Internal Revenue, Con- 
troller of the Currency, and of the Bureau of 
Statistics, and Bureau of the Mint. The heads of 
these several departments are appointed by the 
President, by and with the advice and consent of 
the Senate, but the officers so appointed are placed 
under the direction of the S.ecretary of the 
Treasury, 

The Department of Justice, at the head of which 
stands the Attorney-General of the United States, 
consists, in addition to the Attorney-General, of an 
Assistant Attorney-General, a Solicitor-General, a 



90 COI^STITUTIOIN^AL HISTOET. 

Solicitor of the Treasury, an Assistant Solicitor 
of the Treasury, a Solicitor of Internal Revenue, 
a Naval Solicitor, and Examiner of Claims, all of 
which are appointed by the President, but are 
under the direction of the Attorney-General. The 
Attorney-General is required to give his advice 
and opinion upon all questions whenever required 
by the President. No public money is to be ex- 
pended upon any site or land purchased by the 
United States for any purpose until the written 
opinion of the Attorney- General is had in favor of 
the validity of the title, and the District Attorneys 
of the United States in the various judicial dis- 
tricts of the United States are required, upon the 
application of the Attorney-General, to furnish any 
assistance or information in their power in rela- 
tion to the title of public property lying within 
their respective districts. 

Both the War and Navy Departments are au- 
thorized to ask for advice from the Attorney- 
General on any question of law upon which the 
heads of those departments may have doubt. The 
Attorney-General and Solicitor-General are re- 
quired to argue suits and writs of error and 
appeals to the Supreme Court of the United States, 
and suits in the Court of Claims in which the 
United States is interested. And the officers of 



THE EXECUTIVE POWER. 91 

the Department of Justice, -ander the direction of 
the Attorney-General, are required to give all 
opinions and render all services requiring skill of 
persons learned in the law, necessary to enable the 
President and heads of Departments, heads of 
Bureaus, and other officers in the departments to 
discharge their respective duties. They are re- 
quired to procure proper evidence for, and to con- 
duct and prosecute all suits and proceedings in 
the Supreme Court and Court of Claims, in which 
any officer of the United States is a party or may 
be interested. General superintendence is given 
to the Attorney-General over all the United States 
attorneys and marshals of all districts in the 
United States as to the manner of the discharge 
of their respective duties. The Attorney-General 
is authorized to employ counsel in such cases as 
in his discretion may require additional counsel. 

The Solicitor of the Treasury has a general 
supervision over the bonds and actions of all per- 
sons charged Avith the collection of taxes and in- 
ternal duties. He has power to take cognizance 
of, and to take measures to prevent and detect all 
frauds or attempted frauds upon the revenue, and 
to make such rules in relation to the collection of 
the revenue as in his judgment, and with the ap- 
probation of the Attorney-General, he may see fit. 



92 COJN^STITUTIOI^AL HISTOEY. 

The Attorney-General is required annually to 
print an edition of such opinions as may be 
deemed by him worthy of permanent record ; and 
to make annually a report of the conduct of his 
office and of his subordinates, to Congress. 

The Post-office Department consists of the Post- 
master-General and three Assistant Postmasters- 
General, appointed by the President. It is the 
duty of the Postmaster-General to establish and 
discontinue post-offices, to prescribe the manner of 
keeping accounts and rendering returns, to make 
contracts for postal service ; by and with the con- 
sent of the President, to negotiate postal treaties 
and conventions ; reduce or increase the rate of 
postage or mail matter conveyed between the 
United States and foreign countries ; make rules 
and regulations as to fines, penalties, forfeitures 
or disabilities in relation to his department. He 
is required to make an annual report to Congress 
of all contracts made for carrying the mail within 
the preceding year ; the prices paid, etc., of all 
land and water mails established or ordered within 
the preceding year ; the names of persons em- 
ployed to transport it, price paid etc., and all 
allowances made to contractors within the preced- 
ing year in addition to the sum originally stipu- 
lated in their respective contracts, and the reasons 



THE EXECUTIVE POTTER. 93 

for the same; a report of all the curtailment of 
expenses effected within the preceding jear; a 
report of the revenues of the department for the 
preceding year, and the amount actually paid for 
carrying the mail, and comparing the same with 
preceding years. The Postmaster is required to 
report to Congress all contracts made for the car- 
riage of mail matter, and give a detailed account 
of the postal business and agencies in foreign 
countries, which report is first to be submitted to 
the Secretary of the Treasury, and then printed 
and submitted to Congress as part of the Treasur- 
er's Eeport. 

The Department of the Navy consists of the 
Secretary of the Navy and Assistant Secretary of 
the Navy and a large executive force. The War 
Department consists of the Secretary of War and 
a large executive force. It is unnecessary to 
enter into detail as to the duties and functions of 
the Naval and War Departments, as the terms in- 
dicate what their functions are. 

The Department of the Interior is a much more 
complica-ted one. The Secretary of the Interior 
has an Assistant Secretary, appointed by the 
President. The Secretary of the Interior is 
charged with the supervision of public business 
relating to the following subjects : 1. The census ; 



94 COTTSTITUTTOJS-AL HISTOEY. 

therefore a Census Bureau with its staff of officers 
is under his direction and control. 2. The public 
lands, including mines. 3. Indians. 4 All pen- 
sions and bounty lands. 5. All patents for inven- 
tions. 6. The custody and distribution of all 
publications. 7. The Education Department. 8. 
The Government Hospital for the Insane. 9. The 
Columbia Asylum for the Deaf and Dumb. Under 
him, therefore, there is a Commissioner of the 
Land Office ; a Commissioner of Indian Affairs ; a 
Commissioner of Pensions ; a Commissioner of 
Patents, and Assistant Commissioners; Superin- 
tendent of Public Documents, and Commissioner 
of Education, — all appointed by the President and 
confirmed by the Senate. 

A supplemental Executive Department was 
created in 1862, independent of the other depart- 
ments, but the head of which is not a member of 
the cabinet, called the Department of Agriculture. 
This commissioner is charged with the duty of 
procuring and preserving all information concern- 
ing agriculture which can be obtained by means of 
books and correspondence, and by practical and 
scientific experiments ; to collect new and valuable 
seeds and plants, and shall test by cultivation the 
value of such of them as may require such tests, 
and shall propagate such as may be worthy of 



THE EXECUTIVE POWEE. 95 

propagation, and shall distribute them among 
agriculturists. This purchase and distribution of 
seeds by the department is confined to rare and 
uncommon ones, or such as can be made more 
profitable by frequent changes from one part of 
the country to another, and the purchase for propa- 
gation of trees, plants, shrubs, vines, and cuttings, 
are confined to those which are adapted to general 
cultivation, and to promote the interests of agri- 
culture and horticulture throughout the United 
States. 



CHAPTEE lY. 



THE JUDICIAL POWEE. 



One of tlie main reasons wliy the Articles of 
Confederation failed to bring about a permanent 
national entity, was because no proper judicial 
organization existed thereunder to enforce the 
law ; Congress was made the tribunal of last resort 
in controversies between the States, and the only 
power given to Congress to create judicial tribunals 
was to create prize courts. ■ 

Alexander Hamilton, in treating of the Judiciary 
department of the United States and the necessity 
for its creation, with reference to the power to 
adjudge acts void which are passed by a coordi- 
nate department — the Legislature — says: "The 
complete independence of the courts of justice is 
peculiarly essential in a limited Constitution. By 
a limited Constitution I understand one which 
contains certain specified exceptions to legislative 
authority, such for instance, as that it shall pass 

no bill of attainder, no ex post facto law and the 
96 



THE JUDICIAL POWER. 97 

like. Limitations of tliis kind can be preserved in 
practice in no other way than through the medium 
of the conrts of justice, whose duty it must be to 
declare all acts contrary to the manifest tenor of 
the Constitution void ; without this all the reser- 
vations of particular rights or privileges would 
amount to nothing. " ^ ^ It is urged that the 
authority which can declare the acts of another 
void must necessarily be superior to the one whose 
acts may be declared void. As this doctrine is of 
great importance in all the American Constitu- 
tions, a brief discussion of the ground on which 
it rests cannot be unacceptable." 

" There is no position which depends on clearer 
principles than that every act of delegated 
authority contrary to the tenor of the commission 
under which it is exercised is void. No legisla- 
tive act, therefore, contrary to the Constitution, 
can be valid. To deny this would be to affirm 
that the deputy is greater than his principal ; that 
the servant is above his master ; that the represen- 
tatives of the people are superior to the people 
themselves ; that men acting by virtue of powers 
may do not only what their powers do not author- 
ize, but what they forbid. If it be said that the 
legislative body are themselves the constitutional 
judges of their own powers, and that the construe- 



98 COlSrSTITUTIONAL HISTOET. 

tion that they put upon them is conclusive upon the 
other departments, it may be answered, that this 
cannot be the natural presumption where it is not 
to be collected from any particular provision in 
the Constitution. It is not otherwise to be sup- 
posed that the Constitution could intend to enable 
the representatives of the people to substitute their 
will to that of their constituents. It is far more 
rational to suppose that the courts were designed 
to be an intermediate body between the people and 
the Legislature, in order, among other things, to 
keep the latter within the limits assigned to their 
authority. The interpretation of the laws is the 
proper and peculiar province of the courts. A 
Constitution is in fact, and must be regarded by 
the judges as a fundamental law. It must, there- 
fore, belong to them to ascertain its meaning as 
well as the meaning of any particular act proceed- 
ing from the legislative body. If there should 
happen to be an irreconcilable variance between 
the two, that which has the superior obligation 
and validity ought to be preferred. In other words, 
the Constitution ought to be preferred to the 
statute, the intention of the people to the inten- 
tion of their agents. Nor does the conclusion by 
any means suppose a superiority of the judicial 
to the legislative power. It only supposes that the 



THE JUDICIAL POWEE. 99 

power of the people is superior to both, and that 
where the will of the Legislature declared in its 
statutes stands in opposition to the will of the 
people declared in the Constitution, the judges 
ought to be governed by the latter rather than by 
the former ; they ought to regulate their decisions 
by the fundamental laws rather than by those 
which are not fundamental. ^^ * ^ It can be of 
no weight to say that the courts on the pretence 
of a repugnancy may substitute their own pleasure 
to the constitutional intentions of the Legislature. 
This might as well happen in the case of two con- 
tradictory statutes, or it might as well happen in 
every adjudication upon any single statute. The 
courts must declare the sense of the law, and if 
they should be disposed to exercise will instead of 
judgment, the consequence would equally be the 
substitution of their pleasure to that of the legis- 
lative body. The observation, if it proved anything, 
would prove that there ought to be no judges dis- 
tinct from that body. If, then, the courts of justice 
are to be considered as the bulwarks of a limited 
constitution against legislative encroachments, 
this consideration will afford a strong argument 
for the permanent tenure of judicial officers, since 
nothing will contribute so much as this to that in- 
dependent spirit in the judges which must be 



100 CO]S'STITUTIONAL HISTORY. 

essential to the faithful performance of so ardnoiis 
a duty." — Federalist No. 78. 

I have cited the foregoing passage at length be- 
cause vesting courts with power to declare the acts 
of the highest law-making power unconstitutional 
would, at first blush, seem to be dangerous. In 
the mother country, from which the United States 
derived their institutions, such a power is not 
given to the courts. Violent constructions of the 
meaning of words employed by the Legislature are 
sometimes resorted to, on the theory that Parlia- 
ment could not have intended to mean anything 
repugnant to natural justice ; yet no British Court 
ever declared an act of Parliament void on the 
ground of a violation of the English Constitution. 

But for the fact that there is a check upon the 
judges to prevent them from wantonly vetoing leg- 
islation by declaring it to be unconstitutional, the 
judiciary would be the supreme governing power of 
the land, and that as there is no power superior to 
the judicial one, to revise their errors of judgment or 
to make inquiry whether they have reasonably exer- 
cised that power or not, it is within the power of the 
court of last resort of the United States to declare 
every act unconstitutional, however violent such a 
declaration may be and thus nullify all legislation. 
There is, however, in the Constitution of the United 



THE JUDICIAL POWEE. 101 

States a check upon this power, lodged in tlie leg- 
islative body itself. The pov/er to impeach and to 
remove for any cause appearing sufficient to two- 
thirds of the Senate upon presentment by the 
House, makes all the members of the Supreme 
Court of the United States subject to removal if 
they are guilty of a gross violation of the judicial 
discretion lodged by the Constitution in them. 
And as the members of the Senate, who are 
charged with the duty of trying the impeachment 
are responsible to their States, and the members 
of the House who make the presentment are in 
their turn responsible to their constitutents — the 
people of the States — (by this system of checks 
and balances thus created by the Constitution for 
the purpose of preserving each department within 
its proper sphere) are finally called upon to deter- 
mine whether their servants have acted within the 
limits of the powers respectively delegated to 
them. 

The reasoning of Hamilton seems to be conclu- 
sive — that no written Constitution deputing limited 
powers can, by any possibility, be enforced against 
the deputed agents exercising for the time such 
powers, unless a court of judges, sitting for life or 
during good behavior, is interposed between the 
people and their legislative agents, clothed with 



102 COI^STITUTIONAL HISTORY. 

the power to declare a final opinion on tlie consti- 
tutionality of the statutes emanating from the 
Legislature. The Constitution of the United 
States does not stand alone in that particular. All 
the State Constitutions grant to the State Courts 
of last resort the power finally to declare upon 
the constitutionality of State legislation, and every 
statute, therefore, passed in the United States may 
be called into question, as to the constitutional 
power to enact the same, either before a State or 
federal court, or before both. 

The judicial power of the United States is 
lodged under the Constitution in a Supreme Court 
and such inferior tribunals as Congress may from 
time to time ordain and establish. 

The judges of the Supreme Court and inferior 
courts hold their offices during good behavior, and 
they are entitled to receive a compensation which, 
during their continuance in office, is not permitted 
to be diminished. The judicial power conferred 
upon the Supreme Court extends to all cases in 
law and in equity arising under the Constitution, 
the laws of the United States and treaties made, or 
which shall be made, under their authority ; to all 
cases affecting ambassadors and other public min- 
isters and consuls; to all cases of admiralty and mari- 
time jurisdiction to which the United States shall 



THE JUDICIAL POWEE. 103 

be a party ; to controversies between two or more 
States ; between a State and citizens of another 
State ; between citizens of different States ; be- 
tween citizens of tlie same State claiming: 
lands under grants of different States ; and 
between a State or the citizens thereof and foreign 
States, citizens or subjects. By the eleventh 
amendment to the Constitution, however, it was 
enacted that the judicial power of the United 
States was not to be construed to extend to any 
suits in law or in equity, commenced or prosecuted 
against one of the States by citizens of another 
State, or by citizens or subjects of any foreign 
State. 

It is further provided in the Constitution, that 
in all cases affecting ambassadors and other public 
ministers, consuls, and those in which a State shall 
be a party, the Supreme Court shall have original 
jurisdiction. In all the other cases before mentioned, 
the Supreme Court has appellate jurisdiction, both 
as to law and fact, with such restrictions and regu- 
lations as Congress may make. As the Constitu- 
tion itself declared wherein the original jurisdic- 
tion of the Supreme Court shall consist. Congress 
thereafter became powerless to assign original 
jurisdiction to that court in cases other than 
those specified in the article. A State may bring 



104 COI^STITUTIOJ^AL HISTOEY. 

an original snit in tlie SujDreme Court against a 
citizen of another State, bnt not against one of her 
own citizens. 

Although the Constitution vests the Supreme 
Court with original jurisdiction in certain cases 
mentioned, which may not be enlarged by Con- 
gress, Congress, nevertheless, may lodge concur- 
rent jurisdiction in some of the inferior courts 
created by it under the powers conferred by the 
Constitution. 

Under the Constitution, the States are prohibited 
from doing a number of things, some of which are 
incompatible with the interests of the Union. 
There would be no possibility to keep the States 
within the limitations thus imposed if the States 
themselves were to be the judges of the extent of 
such inhibition, or its application to a particular 
case ; and, therefore, the Supreme Court of the 
United States is necessarily lodged with the power 
to correct and prevent infractions thereof. *' This 
body," says Hamilton, " must have either a direct 
negative on the State laws, or authority in the 
federal courts to over-rule such as might be a 
manifest contravention of the articles of the Union. 
There is no third course that I can imagine. ^ * * 
Controversies between the nation and its members 
or citizens can only be properly referred to national 



THE JUDICIAL POWER. 105 

tribunals. Any other plan would be contrary to 
reason, to precedent, and decorum." 

"The peace of the whole," again says Hamilton, 
" ought not to be left at the disposal of a part. 
The Union will undoubtedly be answerable to 
foreign powers for the conduct of its members, and 
the responsibility for an injury ought ever to be 
accompanied with the faculty of preventing it. 
Therefore, the federal judiciary ought to have cog- 
nizance of all causes in which the citizens of 
other countries are concerned. This is not less 
essential to the preservation of public faith than 
to the security of public tranquility. The power 
of determining causes between two States, between 
one State and the citizens of another, and between 
the citizens of different States, is perhaps not less 
essential to the peace of the Union than that which 
has just been examined. The institution of the 
Imperial Chamber by Maximillian, towards the 
close of the fifteenth century, did much to prevent 
the dissensions and private wars which had there- 
tofore harried Germa^ny. It may be esteemed 
a basis of the Union, that the citizens of 
each State shall be entitled to all the privileges 
and immunities of the citizens of the several 
States, and if it be a just principle that every 

Government ought to possess the means of execut- 

5* 



106 CONSTITUTIOI^AL HISTORY. 

ing its own provisions, by its own authority, it will 
follow, that in order to the inviolable maintenance 
of that equality of privileges and immunities to 
which the citizens of the Union will be entitled 
the national judiciary ought to preside in all cases 
in which one State or its citizens are opposed to 
another State or its citizens." 

The jurisdiction conferred in the case of treaties 
is so necessary a one that it is almost too clear for 
argument. The cognizance of maritime causes is 
a necessary part of the power of the National 
Government as a matter of public peace. It is the 
only jurisdiction that was conferred by the Articles 
of Confederation on national courts. 

The only case where citizens of the same State 
can go into the courts of the United States, is 
where they claim lands under grants of different 
States. 

Shortly after the adoption of the Constitution, 
the Judiciary Act was passed, constituting national 
tribunals inferior to the Supreme Court, the powers 
and duties of which, under judicial interpretation, 
we propose now to examine. 

When the question to which the judicial power 
of the Federal Government extends under the 
Constitution forms an ingredient of the original 
cause, it is in the power of Congress to give the 



THE JUDICIAL POWEE. . 107 

t 

federal courts jurisdiction of that cause, altliougli 
other questions of fact or law may be involved in it. 
The other questions may be decided as incidental 
to that which gives the jurisdiction. Cases may 
arise under the laws of the United States by im- 
plication, so that they come under the judicial 
power of the Federal Government. It is not unus- 
ual for a legislative act to involve consequences 
not expressed. Where a defendant seeks protec- 
tion of the laws of the United States or under the 
Constitution in any of the States, it is a case aris- 
ing under the law, and gives to the United States 
courts jurisdiction. 

The Constitution not only confers admiralty 
jurisdiction to the courts of the United States, but 
as it superadds the word maritime, every latent 
doubt is removed thereby as to the extent of the 
jurisdiction, and it has, therefore, been held to in- 
clude all maritime contracts, torts and injuries 
which are, in the understanding of the common 
law as well as of the admiralty law, maritime 
causes. The grant, therefore, of admiralty power 
to the federal courts was not intended to be limited 
or interpreted by the theory of cases of admiralty 
jurisdiction in England when the Constitution was 
adopted. The admiralty, therefore, has jurisdic- 
tion over maritime contracts, although the power 



108 CONSTITUTIOIS^AL HISTOEY. 

n 

contemplated begins and ends in tlie State, and is 
prescribed only in waters within the State ; and 
the admiralty jurisdiction extends to torts com- 
mitted on the navigable waters although they are 
within the body of a county within the State. 

As to the original jurisdiction of the Supreme 
Court of the United States, Congress cannot add 
to nor diminish that jurisdiction ; but in the crea- 
tion of the inferior federal courts, it may so regulate 
the jurisdiction conferred by the Constitution as to 
deprive one court of it, substitute another court, 
or change the courts upon which jurisdiction has 
been conferred at its own will ; and of course it 
can modify the practice of the court in any other 
respect that it may deem conducive to the admin- 
istration of justice. 

It is not competent for the States, by any local 
legislation, to enlarge or limit, or narrow the ad- 
miralty and maritime jurisdiction of the federal 
courts. In exercising this jurisdiction they are 
exclusively governed by the legislation of Congress, 
and in the absence thereof, by the general princi- 
ples of the maritime law. The State Legislatures 
have no right to prescribe the rule by which the 
federal courts shall act, nor the jurisprudence 
which they shall administer. If any other doc- 
trine were established it would amount to a com- 



THE JUDICIAL POWEE. 109 

plete surrender of the jurisdiction of tlie federal 
courts, to the fluctuating policy and legislation of 
the States. If the States have a right to pre- 
scribe any rule, they have a right to prescribe 
all rules, to limit, control, or bar suits in national 
courts. 

In an early case before the Supreme Court of the 
United States it was claimed that an Indian nation 
with which the Government had entered into en- 
gagements analogous to treaties, was a foreign 
state in the sense of the Constitution; but this 
claim was negatived by the court, and the exist- 
ence of such tribe as an independent power denied. 
The Indians in that respect form an anomaly in 
American jurisprudence, because they are neither 
citizens nor aliens while in their tribal condition. 
They are under the exclusive jurisdiction of a sub- 
department of the Interior Department of United 
States government known as the Indian Depart- 
ment, but during a brief period they were under 
the jurisdiction of the War Department. 

There are many cases where the State courts 
have concurrent jurisdiction with the United States 
courts, such as where the United States sues, where 
a State sues a citizen of another State, where a 
State sues an alien, where a citizen of one State 
sues another State, where a citizen sues an alien 



110 CONSTITUTIOIS^AL HISTOEY. 

and wliere an alien sues a citizen. In all such 
cases, however, it is provided by United States 
statute, that a removal can be had of such causes 
either before or after issue joined and before trial, 
into the United States courts by either party to 
the record. 

The reader's attention has already been drawn 
to the Amendment of the Constitution which pro- 
vides that a State cannot be made a party at the 
suit of a citizen of its own State or of another State, 
adopted for the purpose of guarding against the 
impairment of the dignity of the State by being 
constantly subjected at the instance of any private 
individual to being dragged before the Supreme 
Court of the United States as a delinquent. Al- 
though this provision guards a State, as such, from 
being made a party, nevertheless the construction 
given by the United States courts to this clause, 
allows State officers, upon vv^hom rests the duty to 
perform an act under the direction either of the 
Constitution of the United States or a statutory 
law of the United States, to be subjected to man- 
datory proceedings on the part of the Supreme 
Court of the United States, compelling them to con- 
form to judgments and decrees, and to perform 
or not to perform a particular act. 

At the time of the formation of the Constitution 



THE JUDICIAL POWEE. Ill 

considerable criticism was made upon tlie clause 
which secured a jury trial in criminal cases alone ; 
but as the common law of England was part of the 
heritage of the people of the United States, and as 
a large part of the system of jurisprudence which 
was thus transferred to the American people from 
England was that which was administered by 
chancellors without a jury, it was deemed wise 
not to interfere with the body of law wherein jury 
trials were unknown, for which no substitute could 
readily be found. Besides, as the Constitution of 
the United States was mainly intended to guard 
against tyranny, and as the tyrannical powers of 
government would be exercised not in private 
personal claims cognisable in equity courts, but 
through the criminal courts, and might be attempted 
to be exercised by bills of attainder passed by pliant 
legislative bodies, the provision preventing the pas- 
sage of ex post facto laws and bills of attainder and 
securing to every man the right to a trial by jury 
at the place where the alleged crime was supposed 
to be committed, was a sufficient safeguard against 
the tyranny of executive and legislative power. A 
statute was therefore held to be unconstitutional 
which provided that a party might be tried by the 
court without a jury on a charge of libel, although 
that statute gave him the right to appeal to another 



112 CONSTITUTIONAL HISTOEY. 

court where the charge must be tried by a jury, be- 
cause the accused was entitled in the first instance 
to be tried by a jury without having his cause prej- 
udiced by a conviction by a court prior to such 
trial ; and although the statute gave the prisoner 
power to determine how he should be tried, yet as 
the constitutional provision was intended not for 
the protection of one individual, but for the pro- 
tection of the community, such a waiver of his 
rights was not conclusive : the courts would look 
at the record alone, and if the trial was unconsti- 
tutional the individual waiver made no difference as 
to the illegality of the conviction. 

No provision in the United States Constitution 
is perhaps more conservative of individual liberty, 
or more carefully worded in that particular than 
that which relates to treason. No case of con- 
structive treason can arise under the plain provision 
of the Constitution in that particular. No con- 
spiracy against the Government, however clear, un- 
less it consists of the actual levying of war, can be 
construed to be treason. Even resistance to the 
execution of the laws of the United States accom- 
panied with force, if such resistance is for a j)rivate 
purpose only, is not treason. To constitute the 
offence of treason, the resistance must be of a public 
nature. 



THE JUDICIAL POWEK. 113 

Under the section which gives to the citizen of 
each State the privileges, and immunities of the 
citizens of the several States, it has been held that 
a citizen of one State cannot claim the right to vote 
for an election to office in another State in which 
he is not a citizen under the special laws of that 
State. Each State has the right to declare who its 
citizens in a political sense shall be. The meaning 
of these rights of a citizen of one State in other 
States has been limited to the right to hold and 
dispose of real and personal property, to trade, and 
to transact all the private affairs of life ; but it is 
held that it was not intended by the Constitution 
to obliterate the privileges and immunities which 
arise from citizenship in the several States, nor to 
interfere with the rights of the States to pass such 
laws as they may see fit by which they can properly 
determine whom to admit to the right of suffrage, 
the time of residence within the State necessary to 
constitute citizenship, nor to limit the power of the 
States to subject their citizens, and therefore the 
citizens of all other States, to certain regulations 
and limitations as to political rights arising from 
property or residence considerations. Nor can a 
citizen of one State claim immunity from the laws 
to which the State subjects its own citizens. The 
main purpose of this provision is to inhibit dis- 



114 CONSTITUTIONAL HISTOET. 

criminating legislation against citizens of one by 
otiier States, and to secure for them the equal 
protection of the laws of all States. Nor can a 
citizen claim protection of the laws of his own State 
in another State, because were he permitted to do 
so, his rights would be superior in the State of 
which he is not a citizen to those which he has 
wherein he is a citizen. Another limitation exists, 
that the word citizen means citizen of the United 
States. If either of the States recognized certain 
persons as citizens who are not so recognized by 
the United States, such classes thus created have 
not the immunities and privileges accorded to the 
citizens of the United States. If a State were to 
recognize as citizens of the State women or minors 
who are not admitted to the rights of citizenship 
in the United States, they could not claim this 
general citizenship by reason of the special law 
creating them citizens within the domain of a single 
State. 

Under the clause of the Constitution of the 
United States which gives Congress the power to 
dispose of and make all needful rules and regula- 
tions respecting the territory belonging to the 
United States, a considerable body of legislation 
and of judicial decisions has sprung up in relation 
to the public lands of the country. At the time of 



THE JUDICIAL POWEE. 115 

the adoption of the Constitution a vast body of 
land was ceded by several States to the general 
Government. By the Louisiana and Florida pur- 
chases, the Texas acquisitions, and subsequently by 
the purchases from Mexico under the Guadalu23e 
Hidalgo treaty of a large proportion of the present 
western coast of the United States, and finally 
by the j)ur chase of Alaska, an enormous territory, 
covering three and a half million square miles, came 
into the possesion of the United States to act with 
as it saw fit. With this domain the Government 
dealt ; first, in selecting vast tracts for the Indian 
tribes ; secondly, in reserving miners' rights ; 
thirdly, in providing homesteads for actual set- 
tiers ; fourthly, in granting concessions to soldiers 
in the Indian, Mexican, and Civil wars by way of 
bounty ; fifthly, in gifts to States for educational 
and other purposes ; sixthly, in making enormous 
grants to railway corporations as inducements to 
build the trans-continental lines which connect the 
Pacific with the Atlantic coasts ; seventhly, by the 
sale of the public lands as a source of revenue. 
Under the homestead laws any person may select 
one hundred and sixty acres, and after a specified 
time, if he erects thereon a house and actually tills 
the soil and gives notice of his intention to occupy 
the same, he can for a mere nominal payment cov- 



116 CONSTITUTIONAL HISTOEY. 

ering expense of issue of patent, etc., become the 
owner of the land he had in possession. 

Under the Florida, Louisiana, and Mexican 
purchases the United States was called upon to 
deal with grants of great bodies of land which had 
been by the Spanish and French Crowns and 
Mexican Government ceded to individuals, colonies 
and adventurers during the prior occupation of 
that territory by these foreign governments. 
Under the promise given by the treaties by which 
the purchases were made, that full faith and credit 
would be given to titles theretofore acquired in 
good faith, the United States has issued patents 
for vast tracts of those territories to individuals 
whose claims of title antedated the cession to the 
United States. An attempt has been made in 
recent years to limit the rights acquired under 
such patent to eleven square leagues, but such' 
efforts have been rejected by Congress, on the 
ground, that however desirable it may be to pre- 
vent the public domain from being monopolized, 
good faith demanded and the treaties compelled 
respect for such prior titles by immunity from the 
claim of the United States to lands thus segregated 
from the public domain. 

Under the provision of the Constitution which 
gives to the Constitution of the United States and 



THE JUDICIAL POWEE. 117 

the laws of Congress supreme power, only such 
power is meant which has been specifically or by 
necessary implication conferred upon Congress by 
the Constitution. The States are sovereign and 
independent governments in all matters not dele- 
gated to the general Congress. Their power to 
tax is unrestricted unless they exercise it in such 
a way as to impede the operation of proper United 
States legislation or the functions of United States 
officers. In this power the State is sovereign and 
supreme, and its wisdom or fairness cannot be in- 
quired into by federal tribunals. 

The amendments to the Constitution, with the 
exception of the last three, are mainly intended to 
secure personal rights against infringement by 
the United States Government. Under the first 
amendment which inhibits Congress from passing 
any law respecting the establishment of religion or 
prohibiting the free exercise of speech, of the press, 
or of the people peaceably to assemble, it has been 
held that Congress has no power to punish indi- 
viduals for disturbing assemblies of peaceable 
citizens ; that this is the prerogative of the several 
States, and that it belongs to the preservation of 
the public peace entrusted to local legislation. 

Although the right of the people to keep and 
bear arms is secured by the Constitution of the 



118 COIS'STITUTIOT^AL HISTOEY. 

United States, the provision lias been held not to 
prevent the passage of a law to prevent the carry- 
ing of concealed weapons. 

Under the provision which secures the right of 
the people against unreasonable searches and 
seizures, it has been held that those provisions of 
the United States revenue laws which authorize a 
revenue officer to issue a summons for the produc- 
tion of books and papers were valid, and that this 
provision in itself does not prevent the Legislatures 
of the several States in absence of any State and con- 
stitutional inhibition from passing such seizure 
laws as they see fit. 

The provisions securing all persons held to 
answer for a capital or otherwise infamous 
crime against conviction except by a presentment 
or indictment of a grand jury, except in cases aris- 
ing under the land and naval forces in time of war, 
or public danger, have been construed not to apply 
to misdemeanors, and not to apply to trials in a 
State court for an alleged crime without any pre- 
vious indictment by a grand jury. And although 
a man may not be twice put in jeopardy of life or 
limb for the same offence, nevertheless he may be 
twice tried for the same crime, if no acquittal or 
conviction has been had by a prior jury because 
of a disagreement or mis-trial. In the provision 



THE JUDICIAL POWEE. 119 

that no man's property or person sliall be subjected 
to trial except by due process of law, process lias 
been held to mean some form of judicial proceed- 
ing known to the common law. Therefore, an 
order of the President is not due procees, nor is 
a statute which deprives a man of his property 
by the repeal of a prior grant of land due pro- 
cess. Bights once acquired cannot be divested 
without a process known to judicial forms, result- 
ing in a trial of some kind. 

In the same amendment it is provided that no 
private property shall be taken for public use 
without just compensation. This of course implies 
that no private property shall be taken for private 
use at all, with or without compensation. Public 
use, of course, implies all use made necessary by 
war, in which event property may be taken without 
compensation ; and also for all public purposes, 
when there is no war, which arise under the exer- 
cise of the power of eminent domain. This need 
not be exercised directly by the general Congress, 
but may be deputed to corporations by giving grants 
of power to them to perform functions public 
in its character, such as building of roads, bridges, 
water-ways, &c., and who may be empowered to 
exercise the right of eminent domain on making 
compensation in a manner provided by a statute. 



120 CONSTITUTIOIS-AL HISTOET. 

No State nor the United States can take property 
from indiyiduals for ends which are not public. 
Thus it has been held that to exercise the taxing 
power in aid of private enterprises, however desir- 
able the encouragement of such enterprises may be 
for the general prosperity of the community, is un- 
constitutional and improper legislation. It is pos- 
sible that at some future day the Supreme Court 
of the United States may reverse its former de- 
cisions under the regulating of commerce clause 
and upon the ground just stated declare protective 
tariff legislation under the guise of revenue 
laws, unconstitutional. No State can condemn the 
property of the United States. The power in that 
respect of the Federal Government is complete in 
itself. It can neither be enlarged nor diminished by 
a State, nor can any State prescribe the manner in 
which it must be exercised, and the consent of a 
State can never be a condition precedent to its 
exercise. 

In case of criminal prosecutions the Constitution 
limits the power of the courts to trials within the 
district where the crime has been committed, gives 
to the accused the right to be confronted with the 
witnesses against him, secures for him the compul- 
sory process of courts to obtain witnesses in his 
favor, and compels the courts to assign counsel for 



THE JUDICIAL POWER. 121 

his defence. Under this provision it has been 
held by the United States courts, that no persons, 
except those who are connected with the army or 
navy, in districts where the courts are open can 
be charged with crime and tried before a military 
commission. 

One of the most important protections to indi- 
vidual liberty embodied in the Constitution of 
the United States is in the seventh article of 
the amendments, which provides that no fact 
tried by a jury shall be reexamined by any 
court in the United States otherwise than accord- 
ing to the rules of common law. This secures 
citizens of the United States against vexatious 
proceedings by which they may be again and again 
harassed on the same subject matter of complaint, 
after the matter has once been judicially deter- 
mined. When so judicially determined both the 
laws of the States and the procedures of the courts 
of the United States provide for proper appeals by 
means of which the question of errors may be 
considered and determined, and thus alone the 
subject matter of the controversy maybe reviewed. 
When determined, however erroneously, by a court 
of last resort or by a competent judicial tribunal 
from whose judgment no appeal has been taken, 

the judgment is to be considered final, and in the 
6 « 

\ 



122 CONSTITUTIONAL HISTORY. 

interests of justice not to be shaken nor to be re- 
examined by any department or any special court or 
by any other court, as between the same parties. 

Trial by jury is so often referred to in the United 
States Constitutions that what is a trial by jury 
has been the subject of judicial examination, and it 
has been held that a decision by a jury in which 
three -fourths of a jury are permitted to determine, 
is not such a trial by a jury ; that the only proper 
judgment known to the Constitution that can be 
rendered in a trial by a jury, is that which requires 
unanimity on the part of the jury. 

The eighth amendment, which provides that 
excessive bail shall not be required, nor excessive 
fines be imposed, nor cruel or unusual punishments 
be inflicted, has been held to apply only to the im- 
positions of fines and punishments by United 
States tribunals for offences against United States, 
and that it was not intended to protect the citizens 
of the several States from the penal codes of such 
States, although the fines or punishments may be 
considered both excessive and cruel. 

The thirteenth, fourteenth, and fifteenth amend- 
ments, and which were the result of the civil war, 
had for their object the abolishing of slavery, the 
securing to all persons who were citizens of the 
United States, the position of citizens of the States 



THE JUDICIAL POWER. 123 

wherein they resided, and to prevent any State 
from not giving the equal protection of its laws to 
any of the citizens of the United States by reason 
of any distinction of race, color, or previous con- 
dition of servitude. They also had for their object 
to abolish the apportionment of congressional 
seats which had previously been based upon popu- 
lation unrepresented as citizens ; the slaves in the 
Southern States, counting as part of the population 
prior to the war for purposes of representation, 
although treated as chattels for all other purposes, 
gave to the South an undue proportion of represen- 
tation as compared with the free white population 
of the North. These amendments were also in- 
tended to prevent persons from becoming officers 
of the United States, who had actually engaged in 
rebellion unless the disability was removed ; and 
finally their provisions are clear and unmistakable 
declarations forever to prevent the questioning of the 
validity of the public debt of the United States which 
had been created to suppress the rebellion, and on 
the other hand forev-er to prevent the United 
Spates from assuming to pay, or the States from ever 
permitting the payment of, any debt which had been 
created or incurred in aid of the insurrection or re- 
bellion. Every claim for loss or emancipation of any 
slaves, or losses of rebels in property, are forever 



124 COI^STITUTIO]S"AL HISTOEY. 

barred by these amendments, and all courts have 
the duty imposed upon them to declare all such 
debts, obligations and claims illegal and void. 
Under the foregoing amendments it has been held 
that the States are not permitted, under public edu- 
cational laws, to exclude colored children from its 
benefits merely because of their African descent, 
but that separate schools might be maintained 
wherein such children may be educated apart from 
the whites. 

Under the provision that the rights of the citi- 
zens of the United States shall not be denied or 
abridged by the United States or any State on 
account of race, color, or previous condition of ser- 
vitude, it has been held by the Supreme Court of 
the United States that the right of suffrage is not 
thereby conferred upon any one ; that it simply pre- 
vents the States from giving preference to one 
citizen of the United States over another on account 
of race, color, or previous condition of servitude, 
- and that it leaves the States as free as theretofore 
to regulate the right to vote, but prevents them 
from making any distinction by reason of race, 
color, or previous condition. 

"We have now passed in review the leading 
articles of the Constitution of the United States, 
and the main questions that have arisen for judicial 



THE JUDICIAL POWER. 125 

determination under them. The apprehension 
that was originally felt that the Supreme Court of 
the United States would not faithfully declare the 
principles of the Constitution, and that it either on 
the one side would be under the domination of the 
legislatiye body, or, on the other, attempt to domi- 
nate the Legislature by improperly declaring such 
measures unconstitutional which could be so 
declared only by a violent misinterpretation of the 
fundamental law, has proved unfounded. The duty 
has thus far been performed with conscientious 
firmness, and so thoroughly do the people of the 
United States, including its Legislatures, rely upon 
the fearless performance of Jhat duty on the part of 
the courts of last resort, that when an objection is 
made in a legislative body, that a certain provision 
in Sb proposed law is of doubtful constitutionality, 
the ready answer is made that if it is so the courts 
will so declare it, and thus eliminate it from 
the law. 

We have seen that the Supreme Court of the 
United States itself is established by the Constitu- 
tion. The power to establish inferior tribunals was 
given to Congress. The Supreme Court having 
original jurisdiction in two classes of cases only, 
viz., in cases affecting ambassadors, other public 
ministers and consuls, and in cases in which the 



126 COITSTITUTIONAL HISTOEY. 

State is a party, Congress could not vest any 
portion of the judicial power of tlie United States 
except in the courts ordained and established by 
itself. The appointment is vested by the Constitu- 
tion in the President, but the organization of these 
inferior tribunals was made by the Judiciary Act of 
1789. This act repeats the language of the Consti- 
tution of the United States in creating the Supreme 
Court, and extends the power of the court so as to 
include the right to issue writs of prohibition to 
the district courts when proceeding as a court of 
admiralty and maritime jurisdiction, and writs of 
mandamus in cases warranted by the principles 
and usages of law to any courts appointed by the 
authority of the United States or to persons hold- 
ing office under the authority of the United States, 
where a State or an ambassador or other public 
minister, or a consul or vice-consul is a party. It 
defines the appellate jurisdiction of the Supreme 
Court to be by appeal, or writ of error from the 
final judgments of circuit courts or district courts 
acting as circuit courts ; in civil actions brought 
there by original process or removed there from 
the courts of the several States ; all final judgments 
in the Circuit Court in civil causes removed 
there from any district court by appeal or writ of 
error where the amount in dispute exceeds two 



THE JUDICIAL POWER. 127 

thousand dollars ; also in cases of equity where the 
amount in dispute exceeds two thousand dollars ; 
all prize cases where the matter in dispute exceeds 
the sum of two thousand dollars, an appeal lies to 
the Supreme Court from the judgments of the dis- 
trict courts. Likewise the Supreme Court is to 
entertain appeals of prize causes which were 
depending in the Circuit Courts. It is provided 
that if the judges are divided in opinion in any 
Circuit Court, the point shall be certified to the 
Supreme Court, and its decision or order in the 
premises shall be remitted back to the Circuit 
Court and there entered of record. An appeal is 
provided by the act of 1863 from final judgments 
or decrees of the District of Columbia to the 
Supreme Court of the United States. By subse- 
quent legislation under which the Court of Claims 
was created, appeals were provided to the Supreme 
Court of the United States from decisions of the 
Court of Claims when such decisions are adverse 
to the United States in every case, and where ad- 
verse to the claimants when the amount in contro- 
versy exceeds three thousand dollars. It was 
further provided by the Judiciary Act that in case 
of a final judgment or decree in any suit in the 
highest court of a State in which a decision in the 
suit could be had, where is drawn in question the 



128 CONSTITUTIOI^AL HISTOET. 

validity of a treaty or statute of, or an authority 
exercised under, the United States, and the decision 
is against its validity, or where is drawn in ques- 
tion the validity of a statute or an authority 
exercised under any statute, on the ground of being 
repugnant to the Constitution, treaties or laws of 
the United States, and the decision is in favor of 
its validity, or where any title, right, privilege or 
immunity is claimed under the Constitution, or 
any treaty or statute of, or commission held or 
authority exercised under the United States, and 
the decision is against the title, right, privilege or 
immunity, especially a set-off or claim by either 
party under such Constitution, treaty, statute, 
commission or authority, in such case the final 
judgment or decree may be reexamined, and re- 
versed or affirmed in the Supreme Court of the 
United States on a writ of error, and the writ shall 
have the same effect as if the judgment or decree 
complained of had been rendered or passed upon 
in a court of the United States, and the proceed- 
ings upon the reversal shall be the same except 
that the Supreme Court may in its discretion pro- 
ceed to a final decision of the cause and award 
execution, or remand the same to the court from 
which it was removed ; and the Supreme Court may 
reaffirm, reverse, modify or affirm the judgment or 



THE JUDICIAL POWEK. 129 

decree of such State court, and may award execu- 
tion or remand the same to the court from which it 
was removed by the writ. 

This was a most important addition to and clear 
dejQ.nition of the powers of the Supreme Court, for 
without it State courts, when once having acquired 
jurisdiction of a case, the same not having been 
removed or not being removable under the law to 
the federal courts, would have had the final power 
to determine upon the interpretation of an act of 
Congress or of a treaty, or of the application of 
the Constitution to any particular case ; and how- 
ever strenuously a litigant might have invoked the 
protection of the Constitution of the United States 
against the wrong which was attempted to be done 
him, and however correct his views might have 
been, it would still have been in the power of the 
court to have denied, as against a statute of the 
State, any relief, and wilfully to have shut its eyes 
to the protection which was intended to be given 
by the Constitution of the United States to the 
litigant, and its decision would have been final, 
but for the fact that the Judiciary Act secures to 
every litigant the right to spread upon the record 
the questions applicable to his case, arising under 
the act of Congress or under the Constitution of 

the United States, and thus open to himself an 
6* 



130 CONSTITUTION^AL HISTOEY. 

appeal to the court of last resort of tlie United 
States. Not only was this provision necessary for 
the purpose of securing the supremacy of the Con- 
stitution and the acts of Congress thereunder over 
the Constitutions and laws of the several States, 
but it was also necessary for the purpose of secur- 
ing uniformity of decisions and of interpretation 
of the Constitution of the United States itself. 

A vast number of questions have arisen under 
this power of appeal to the Supreme Court of the 
United States, and the business of that court became 
so encumbered by reason of the numerous appeals 
from State courts on the mere suggestions on the 
record of a United States question, that it became 
necessary for the court, somewhat arbitrarily, to 
limit the appeals in such cases, and to limit the 
inquiry arising from such an appeal from a State 
court to the one question, "Is there a United 
States question involved, and if so has it been 
properly decided by the State courts ? " The 
Supreme Court of the United States have there- 
fore declared that when an appeal is made from, 
or writ of error taken to a court of last resort of 
a State, they will not reexamine as an appellate 
court the correctness of the decision of the court 
of last resort upon any other point than the consti- 
tutional one or one arising under the act of Con- 



THE JUDICIAL POWEE. 131 

gress ; so that if they should come to the conclusion 
that the case was correctly decided on the consti- 
tutional question, however erroneously the decision 
may have been arrived at ©n questions which arose 
entirely under the law of the State independent of 
the Constitution of the United States and of the 
United States laws, they will allow the decision to 
stand. This action of the Supreme Court prevents 
appeals to the Supreme Court of the United States 
being taken by simply suggesting a constitutional 
question in order to have the advantage of that 
court's reexamination of the whole record, and 
if error be found to send it back to be cor- 
rected. 

In cases, however, where the State itself is a party 
or so directly interested that the bias of the State 
court may be supposed to be in favor of the State's 
views as against the United States Constitution or. 
the act of Congress, then the court v^ill look into the 
record sufficiently to see whether the decision upon 
other points was not merely colorable, and not deem 
itself concluded by the facts as found by the court 
below ; in other words, whether the appellate juris- 
diction of the Supreme Court applies in such a 
case or not is not to be determined for the Supreme 
Court by the findings of fact on the part of the 
lower court which would preclude its jurisdiction, 



132 CONSTITUTIONAL HISTOEY. 

but tlie Supreme Court of tlie United States will 
itself examine into facts sufficiently to ascertain 
whether or not its jurisdiction attaches. 

The Judiciary Act further provides for writs of 
ne exeat by the Supreme Court and circuit judges, 
and of writs of injunction by the supreme, circuit 
and district judges ; a limitation upon the power to 
issue writs of injunction to State courts except in 
cases of bankruptcy ; and for the sake of uniformity 
in the various districts and circuits of the United 
States, the laws of the several States, except where 
the Constitution of the United States and statutes 
of the United States otherwise require, are re- 
garded as rules of decision at common law in the 
courts of the United States where they apply ; and 
a recent Judiciary Act has made even the forms 
of procedure in common law proceedings of the 
several State courts in the various districts where 
the courts sit, the forms of pleading and procedure 
of the United States courts. 

Provision is made to prevent injustice by the 
dragging of persons out of the district in which they 
reside, by compelling plaintiffs, residents of the same 
State, to commence their actions v/ithin the district 
where the defendant resides, and all parties are 
permitted in the United States courts to manage 
their own cases personally or by counsel. The 



THE JUDICIAL POWER. 133 

Judiciary Act of 1789 makes ample provisiou for the 
issue of writs of habeas corpus^ empowering and com- 
pelling all judges of the United States courts to issue 
this writ of privilege ; it gives an elaborate and de- 
tailed procedure for the return of the writ and the 
adjudications thereupon, and apjDeals to circuit 
courts and Supreme Court of the United States, and 
stays all proceedings on the part of the State courts 
pending the consideration of the habeas corpus by the 
court below and the proceedings on appeal. Except 
in the Court of Claims the United States cannot 
involuntarily be made a party in a proceeding at 
law. The jurisdiction of the Court of Claims, as has 
been stated, is confined to claims founded upon any 
law of Congress or upon any regulation of an execu- 
tive department, or upon any contract express or 
implied with the Government of the United States, 
and all claims which may specially be referred to it 
by either House of Congress ; all set-offs, counter- 
claims and claims for damages, whether liquidated 
or unliquidated on the part of the Government of 
the United States against any persons making claim 
against the Government in the courts. 

By the acts of 1863, 1864, and 1868, the large 
claims arising from the seizure of cotton in the 
Southern States towards the close of the rebellion, 
were specially referred to the Court of Claims for 



134 COI^STITUTIOIN^AL HISTOEY. 

action. The lobbies of tbe Houses of Congress 
prior to the organization of the Court of Claims 
had been so beset bj claimants that it was found 
necessary to organize a special tribunal to take 
into consideration some of the cases which prior to 
that time were constantly presented to Congress. 
As the court, however, is one of limited jurisdiction 
and as numerous cases of claims asfainst the United 
States Government arise, of which the court has 
no jurisdiction, the committees of Congress are still 
besieged by claimants, and appropriations are 
annually made by acts, arising from reports of 
committees wherein such committees sit as a court 
of judicature determining upon contested claims 
against the United States. Such a committee lacks 
the dignity and power of an ordinary court of jus- 
tice, is subjected to influences which courts of 
justice are not ordinarily subjected to, and has not 
the machinery of a trained bar and regular sessions 
and continuous investigations by which the truth 
is ascertained in ordinary courts of justice. Hence 
meritorious claims are overlooked and meretricious 
ones are so often paid through the instrumentality 
of Congress, that the question has recently been 
considerably agitated whether it would not be 
wiser to have the sovereignty of the United States 
Government sufficiently unbend as to allow it to be 



THE JUDICIAL POWER. 135 

sued in its own courts in the same manner as a 
private litigant. 

Both before and shortly after the adoption of the 
Constitution it was subjected to very severe criticism 
on the ground that it did not contain a Bill of Bights. 
A careful examination of the first twelve amendments 
will show that they were mainly passed to satisfy 
that objection. The objection that was urged to 
their adoption was that they were unnecessary; that 
the Constitution begins with the declaration, "We, 
the people of the United States, to secure the bles- 
sings of liberty to ourselves and our posterity, do 
ordain and establish this Constitution for the 
United States of America ; " that as the very pur- 
pose of the Constitution was to secure the bles- 
sings of liberty this declaration was, as Alexander 
Hamilton thought, a better recognition of popular 
rights than that which is contained in the elaborate 
declaration of rights in every State Constitution. 
It was, however, thought wiser to direct, enlighten 
and quicken public opinion as to the rights which 
were intended to be reserved to the people, and 
which w^ere not intended to be delegated to the 
general Congress, that they be in terms so specifi- 
cally declared that any infraction thereof would be 
immediately recognized as unconstitutional and 
void. The first amendment, which related to free- 



136 COlSrSTITUTIOlSrAL histoey. 

dom of religion " was enacted under the solemn 
consciousness," says Story, " of the dangers 
from ecclesiastical ambition, the bigotry of spiritual 
pride, and the intolerance of sects, and it was 
therefore deemed advisable to exclude from the 
national Government all power to act upon the 
subject. One of the reasons, too, for the necessity 
and wisdom of this course was the fact of the dif- 
ferent religious complications of the majorities 
in different States. In some of the States the 
Catholics predominated ; in others. Episcopalians ; 
in others, Presbyterians ; in others, Quakers ; and 
any recognition on the part of the Government of 
any religion, except in the vaguest possible sort of 
way, would have given rise to considerable amount 
of jealousy and bickering." 

The same amendment contains the security for 
freedom of the press and of speech. It is necessary 
to say that this security was not intended to give 
to any citizen an absolute right to speak or write 
or print whatever he saw fit without personal 
responsibility to the person aggrieved thereby. 
Every man was intended to have the right to speak 
and the right to print his opinions upon any sub- 
ject whatever without any prior restraint by way 
of censorship ; but if he injure any other person in 
his rights of person, property or reputation, he is 



THE JUDICIAL POWEE. 137 

subject to civil and criminal prosecution for such 
injury precisely as lie would be for any otlier injury 
to person or property. " Without such limitation," 
says Story, " it might become the scourge of the 
republic." The question how far the Government 
has the right to interfere with the press under the 
security thus afforded, and where licentiousness 
begins and liberty ends, is one which has often 
been mooted, but has not yet found a satisfactory 
solution. There is, however, much force in the 
contention that if the Government is to determine 
at any time what is liberty and what is license, 
then the constitutional provision is but a tissue of 
empty words, because every government, however 
autocratic, admits of certain strictures ; the ques- 
tion is simply as to where the line should be drawn. 
The sounder doctrine in the United States now 
seems to be this : that the Government cannot ex- 
ercise a restraint upon publications ; in other words, 
no censorship of the press can be exercised under 
the constitutional guaranty that men may speak and 
write freely what they please ; and however danger- 
ous and bad the doctrine may be which is being 
advocated or promulgated by the press, it is not 
within the power of the Government to prevent its 
publication. On the other hand if the press at- 
tacks private rights, calumniates individual char- 



138 CONSTITUTIONAL HISTOET. 

acter, or destroys domestic peace, it is responsible 
to the individual aggrieved both by criminal in- 
dictment for libel and by private prosecution for 
libel for the injury thus sustained. And the equity 
courts have power to restrain the intended pub- 
lication of articles if they are injurious to private 
rights, and are not merely the discussion of a 
public question. Whether the United States Gov- 
ernment can be forced to carry through the mails 
literature which is confessedly immoral, is a ques- 
tion which has not yet received final adjudication. 
Upon the instigation of the New York Society for 
the Suppression of Yice, the object of which is 
mainly directed against immoral publications, the 
United States Government has refused to carry cer- 
tain libidinous and clearly immoral sheets. This 
refusal is of course destructive of the business of 
the publications, and as the refusal was generally 
accompanied by declining to redeliver the sheets 
in question, it practically amounted to a confisca- 
tion of private property. In the lower courts this 
course on the part of the Government has been 
held to be constitutional and proper, as it was in 
part the exercise of police surveillance and super- 
vision, and no man's right to speak or write what 
he pleased was impaired by the refusal of the Gov- 
ernment to carry such writings. The argument, 



THE JUDICIAL POWER. 139 

however, against this position is that as the general 
Government through its revenue laws maintains a 
postal department to which all are supposed equal- 
ly to contribute, to deny the facility of the postal 
department is to impose in fact a punishment for a 
particular writing, and is thus an impairment of 
the freedom to publish, which was intended to be 
secured by the Constitution. The question will 
probably receive final adjudication by the Supreme 
Court before long. During the war of the rebel- 
lion, 1861-1865, several of the metropolitan papers 
were imposed upon by a forged proclamation of 
President Lincoln calling for an additional draft of 
four hundred thousand men, to repair the disasters 
to the Union arms. This pretended proclamation 
greatly intensified the feeling of despondency that 
had already taken possession of the people in the 
North at that particular juncture of the war. The 
newspapers publishing the proclamation were or- 
gans of the Democratic party, and were therefore 
subjects of suspicion on the part of the general Gov- 
ernment. They were suspended by military orders, 
and a military force took possession of their prem- 
ises and stopped for a short time the publication 
of these journals. The question of the right or 
authority of the Government in time of war so to 
suspend a paper was never judicially raised. The 



140 COIfSTITUTIONAL HISTOET. 

order suspending tliem was recalled on the discov- 
ery by the Executive Department of the Govern- 
ment that the mistake was an innocent one and 
that it was not intended wilfully to embarrass the 
Government in its military operations, as it was 
wholly the consequence of an imposition. Under 
the authority of the case known as the Milligan case, 
decided in 1866, we are bound to assume that the ■ 
Supreme Court of the United States would have 
declared such a suspension illegal and unwarranted 
by the Constitution at any point where the ^civil 
tribunals were in full force, even in time of war. 
At the theatre of war, of course, a different rule 
prevails ; but because a nation is at war every part 
thereof is not necessarily under the domination of 
the drum-head court-martial. 

The right of the people peaceably to assemble 
and petition the Government for the redress of 
grievances is one which was borrowed from the 
Declaration of Rights in England, with very little 
change in phraseology. No judicial opinions have 
ever been given upon this clause, because the right 
has never been denied. 

The right of the States to have a militia, and the 
right of the people to keep and bear arms, is the 
subject of the following amendment. This is also to 
be found in the Bill of Eights of 1688. That this 



THE JUDICIAL POWER. 141 

proyision simply means arms necessary for the 
militia and not to secure to each man the right to 
keep a private arsenal, goes without saying. That 
no soldier shall in time of peace be quartered in 
any house without the consent of the owner was to 
prevent the billeting of soldiers in time of peace 
upon the people. This amendment has in practice 
been found to be unnecessary. The army of the 
United States in time of peace is so small and the 
public property of the United States so vast that 
there is no necessity ever to billet soldiers upon 
the inhabitants. The right of the people to be 
secure in their persons, houses, papers and effects 
against unreasonable searches and seizures, and to 
prevent such searches and seizures, except upon 
due warrant issued by a court of justice, is one 
which would seem to be essential for the preserva- 
tion of personal liberty, and has been twice assailed 
in the United States, once under the Alien and 
Sedition laws during the administration of Jeffer- 
son, and the second time during the war of the re- 
bellion by the State and War Departments. In 
both cases the Executive Departments sought ref- 
uge under the principle of solus popuU siiprema lex ; 
that the country was in peril and that it was neces- 
sary to disregard a single constitutional provision 
for the purpose of saving the whole structure. 



142 COI^STITIJTIONAL HISTOEY. 

The revenue laws of the United States contain 
many clauses of questionable authority by which 
revenue officers are entitled to search and seize 
books and papers of merchants and private citizens, 
and the question is not yet fully determined whether 
such inquisitorial proceedings and seizures are not, 
both in spirit and in letter, repugnant to this pro- 
vision of the Constitution. 

That excessive bail shall not be required, nor ex- 
cessive fines imposed, nor cruel or unusual punish- 
ments inflicted, is again a transcript of a clause of 
the Bill of Eights of the Revolution of 1688. This 
clause operates as a restriction upon the powers of 
the United States courts alone, and not upon the 
State courts. 

The various amendments have from time to time 
been the subject of judicial decision, but the most 
important of the amendments are the last two of 
the first eleven, which are to the effect that the 
enumeration in the Constitution of certain rights 
shall not be construed to deny or disparage others 
retained by the people. Were it not for this clause 
it might have been argued with considerable plausi- 
bility, that as the people saw fit, by amendments, 
to incorporate into the Constitution, a Bill of Eights, 
whatever they failed to preserve or mention they 
ceased to have. This provision was made to guard 



THE JUDICIAL POWER. 143 

against the evil suggested in the Federalist when it 
gave a reason why the Constitution had not given 
a Bill of Eights, because the reservation of powers 
without a Bill of Bights was larger than the reser- 
vation of powers with a Bill of Bights. 

The next and last amendment of the first eleven 
is that the powers not delegated to the United 
States by the Constitution, nor prohibited to it by 
the Constitution, are reserved to the States respec- 
tively or to the people. This is a rule of interpre- 
tation of the Constitution which probably would 
have been followed by the courts without this ex- 
press declaration. The Constitution is an instru- 
ment of limited and enumerated powers, and, 
therefore, whatever power is not given is withheld; 
but the declaration has been productive of much 
good, and took the matter of whether the United 
States is a government of merely delegated powers 
out of the range of controversy. 

One great step in advance, however, must here 
be noted between the old Articles of Confederation 
and the Constitution of the United States, inas- 
much as here the expression is "the powers not 
delegated to the United States by the Constitu- 
tion," and in the Articles of Confederation it was 
" powers not expressly delegated or prohibited." 
Therefore, as a large proportion of the powers ex- 



144 CONSTITUTIOl^AL HISTOET. 

ercised by Congress arises from powers wMcli it 
derives by necessary implication from the powers 
expressly conferred, the United States government 
differs in that respect from the Govei^ment under 
the Articles of Confederation, inasmuch as that 
had no power which had not been specially con- 
ferred, and therefore had no powers by implication. 
Hence it was crippled at every turn because the 
organic law which constituted it did not in express 
terms confer the right to pass a particular bill. 



CHAPTEE V. 

THE POST-CONSTITUTIONAL HISTOEY OF THE UNITED 

STATES. 

The foregoing chapters give a succinct state- 
ment of the provisions of the Constitution and 
of the leading questions that have been decided 
under that instrument. An understanding, how- 
ever, of the institutional history of the United 
States would be incomplete if the political and 
constitutional questions entering into politics from 
the time of the adoption of the Constitution down 
to the present day were not sketched, in however 
superficial and rapid a form. The political divis- 
ions of parties in the United States unquestionably 
exerted a very strong influence upon judicial de- 
cisions and the interpretation of the provisions of 
the Constitution of the United States. There is an 
unconscious influence exercised by public opinion 
upon the minds of those who are called upon to 
decide finally constitutional questions, which is 
neither corrupt nor sinister, but which causes a 

written constitution to approximate more closely 
7 145 



146 COl^STITUTIOT^AL HISTOKY. 

to an unwritten one, like tliat of England, by mak- 
ing tlie written word bend and yield to the neces- 
sities of tlie hour, as a large and influential majority 
may determine, and that without constitutional 
amendment. The limits of this book do not per- 
mit so analytical a survey of the whole field as to 
show in detail the influence and pressure of public 
opinion upon the Supreme Court of the United 
States and the gradual yielding of the court to the 
pressure of that opinion, or the influence of the 
opinions held by the members of the court on po- 
litical subjects upon their decisions as a court. 
The reader must make those applications for him- 
self when the story of the political parties in the 
United States will have been told. 

It will be remembered that the Constitution came 
into existence under an almost irresistible pressure 
of necessity either to disestablish the Government 
of the United States and to leave each State free as 
an independent sovereignty to make such alliances 
as it might see fit — because the Articles of Confede- 
ration proved but a rope of sand — or to organize a 
Government clothed with sufficient power to enforce 
obedience to its laws ; with power to assess and col- 
lect revenue, with power to make war, treaties of 
peace and foreign alliances, and having both towards 
the States and as against foreign nations all the attri- 



THE POST-COIN-STITUTIOI^AL HISTOEY. 147 

butes of sovereignty. The jealousy of the States, 
however, which caused the principal difficulty under 
the Articles of Confederation, and the ambition of 
local State leaders, who were apprehensive that 
the formation of the Constitution of the United 
States would be destructive of their influence, and 
who opposed therefore the Constitution after its 
adoption, survived sufficiently to cause within an 
early period thereafter a renewal of hostility to the 
pact, no longer in the form of open opposition to 
the Union, but under the form of urging a strict 
and limited construction of the powers conferred 
upon the federal Government, and to make an ex- 
aggerated claim of sovereignty on the parts of the 
States. 

Under the Constitution of the United States 
Washington was unanimously elected first Presi- 
dent, and he so continued for the period of eight 
years, and probably would have continued to 
hold the office during the period of his life, if he 
had not voluntarily seen fit to withdraw at the end 
of his second term, presumably for the purpose of 
creating an example to limit the Presidential term, 
so that thereafter there should be a sufficiently 
frequent change of the Executive head of the 
Government to prevent future elections from 
being mere idle forms, and also to prevent a con- 



148 OOlvrSTITUTIONAL IIISTOET. 

solidation of power in the hands of the Executive, 
which long continuance in office would inevitably 
bring about. 

Durinsf Washinsfton's administration differences 
of opinion were held largely in abeyance. The 
commanding personal dignity of Washington and 
the complete confidence reposed in him by the body 
of the people, his unimpeachable personal character 
and his remarkable good sense and moderation, 
gave to the country during such first eight years 
that peace, quiet, and freedom from political agita- 
tion which were above all things needful for the 
purpose of establishing the Government, rehabili- 
tating its financial condition which had become 
almost hopeless under the Confederation, placing 
foreign relations upon a sound footing, and allowing 
the people of the United States and its Government 
a tranquil growth unharassed by internal con- 
flict. 

The adoption itself of the Constitution was of 
course accompanied with considerable opposition. 
But ten States had adopted the Constitution at the 
time of the inauguration of the Government, and in 
some of the States the Constitution was adopted by 
but slight majorities. There was naturally, there- 
fore, after the Constitution, as well as before, two 
parties — Federalist and Anti-Eederalist — the lines 



THE POST-CO]S"STITUTIO]S"AL HISTOEY. 149 

of which were, on the whole, retained after the 
Government was inaugurate cl. The Anti-Federalist 
party claimed, after the Constitution was adopted, 
as strong a loyalty to the government as the Fed- 
eralist party itself, but the form of opposition it 
then adopted was to limit the general Government 
to the strict letter of its powers. 

The first Congress met in the City of New York. 
The first questions that engrossed its attention 
after the adoption of the Constitution were the 
organization of the Judiciary, the revenue duties 
on imports and exports, a system of taxation for 
the replenishment of the Treasury to carry on the 
necessary purposes of government. The discussion 
in Congress on the tariff laws shows that at the very 
outset the question of using the tariff as a means of 
protecting "infant" manufacturers was one which 
entered into the method of formulating the legisla- 
tion as part of the system. Fitzsimmons, of Penn- 
sylvania, was mainly the author of the first tariff list. 
James Madison, although he owned himself, as he 
said in the debate, " the friend of a very free sys- 
tem of commerce, and that if industry and labor are 
left to take their own course, they will generally be 
directed to those objects which are most productive, 
and that, in a manner more conservative and direct 
than the wisdom of the most enlightened Legislature 



150 CONSTITUTIOlSrAL HISTOEY. 

could point out," nevertheless conceded (a concession 
which, by the light since thrown upon these ques- 
tions by scientific research, appears to have been 
an error) that as to the navigation element of the 
tariff, if American citizens were left without restraint, 
and the law made no discrimination between vessels 
owned by citizens and those owned by foreigners, 
while other nations made such discrimination, such 
a policy would go to exclude American shipping 
from foreign ports. He conceded the necessity that 
every nation should have in itself the means of de- 
fence, and that in the period antedating the Con- 
stitution, establishments had grown up under the 
powers which those States had of regulating trade, 
which ought not to be allowed to perish in conse- 
quence of recent alterations, and as he was the 
leader of the House, his surrender to the idea of 
making protection a^n incidental consideration in 
the raising of the revenue of the United States en- 
grafted that system upon the legislation of the 
country. A discrimination was imposed in favor of 
teas imported in American bottoms ; a tonnage duty 
was imposed, discriminating in favor of American 
products ; a discriminating duty on spirits was 
passed in favor of nations having commercial treat- 
ies with the United States. In the first Congress 
the slavery question made its earliest appearance 



THE POST-CONSTITUTIONAL HISTOEY. 151 

in tlie shape of a proposition, emanating from Mr. 
Parker, of Virginia, to insert a clause, imposing a 
duty of ten dollars on every slave imported, with a 
view of discouraging the slave trade. The motion 
was not agreed to, but the discussion which it raised, 
in which Madison took an important part, is inter- 
esting, as showing that at that time many of the 
Southern States were anxious to limit the growth 
of the slave power, and looked forward to the period 
when slavery might become entirely obliterated. 
The same Congress passed a Navigation law for-the 
registering of American vessels ; created a Coast 
Survey ; organized Departments ; and placed the 
power of appointment and removal in the hands of 
the President. The power of removal by the Pre- 
sident was strongly opposed, and the measure 
conferring it passed the Senate only by the casting 
vote of the Vice-President, Mr. Adams. The dis- 
cussions which preceded and accompanied the 
adoption of the Constitution by the various States, 
so unmistakably demonstrated the apprehensions 
of great masses of the people, that the Constitution 
was not sufficiently guarded by the declaration of 
the rights of the people, which were to be free from 
any possible impairment at the hands of authority, 
that Mr. Madison at once proposed amendments to 
lay those fears at rest, and the amendments which 



152 COITSTITUTIOKAL HISTOEY. 

have been the subject of consideration in the last 
chapter, were the result of this action. Jefferson's 
oppositions to the Constitution as it stood in 1789, 
were mainly met by the amendments, except the 
one in reference to which he was extremely strenu- 
ous, that the Executive shall not be reeligible to 
office. The important subject of the national debt 
was laid over until the following session for the 
purpose of receiving the report of the Secretary of 
the Treasury upon a plan for its liquidation. On 
the subject of the public lands nothing was done 
except to effect the passage of an act for the 
government of the Northwest territory. The most 
stormy debate of the session was upon the question 
of the permanent seat of the federal Government. 
The Southern members wanted a site on the Poto- 
mac ; Pennsylvania wanted a return to Philadel- 
phia, which had been the seat of the Continental 
Congress. The House agreed, as a matter of com- 
promise, to fix the seat of Government on the 
Susquehanna. The bill came back from the Senate 
so altered as to substitute for the Susquehanna the 
district ten miles square adjoining Philadelphia. 
The House agreed to this, with a slight amendment 
which made it necessary to have the bill go back to 
the Senate ; but by that time the dissatisfaction of 
the Southern members had made itself so apparent 



THE POST-CONSTITUTIONAL HISTORY. 153 

that it was deemed wiser to lay the whole matter 
over to the following session. 

The only important administrative question that 
characterized the first year of Washington's admin- 
istration in addition to the mere selection of persons 
to fill the various offices, was the making of treaties 
with the Indian nations ; and as along the whole 
western frontier the Indian affairs were in a most 
unsettled state, it was necessary to take immediate 
measures to prevent a general outbreak among the 
Indians against the new Government. "Washington 
appointed commissioners to treat with them, and 
these commissioners confirmed some of the old 
Indian treaties that had been made by the various 
States, and promised the Indians immunity from 
taxation and forcible prevention of settlers from 
trespassing upon their lands. 

At the opening of the following session Alex- 
ander Hamilton, the Secretary of the Treasury, 
reported the debt due to the Court of France and 
to private individuals and foreign nations, some- 
thing below twelve million dollars, and the do- 
mestic debt at $42,500,000. The highest possible 
tone was adopted by Hamilton as to the obligation 
of the United States for the payment of the debt 
and the expediency for doing so, and not to lend 

ear to the suggestions which were made to scale 
7* 



154 COIS'STITUTIOIS'AL HISTOET. 

the debt because of tlie depreciated prices at wliicli 
the then holders had bought up its evidences on 
speculation. The State debts arising out of the 
war, which were practically repudiated, made an- 
other addition of $26,000,000. He proposed the 
funding of the debt at six per cent., and to receive 
in payment of the new bonds the evidences of the 
old debt, and to create a sinking fund from post- 
office proceeds for the gradual extinction of the 
new debt. The Continental paper money, which 
amounted to $200,000,000, had by the Continental 
Congress itself been reduced by a system of scaling 
at the rate of forty for one. There were $78,000,- 
000 of the Continental paper money yet outstand- 
ing, and it was intended not to disturb that re- 
duction, but to accept the Continental paper money 
upon the basis of two and one-half cents on the 
dollar. It was finally agreed that the Government 
would pay the holders of the certificates of the 
United States the face thereof, and the question 
arose on the assumption of the State debts. This 
led to an extremely acrimonious debate, arising 
from the fact that some of the States had largely 
provided for the expenses of the war by taxation, 
while others ran recklessly into debt, and it was 
evidently unfair to the inhabitants of the States 
who had borne the burden of taxation during: the 



THE POST-CON^STITUTIONAL HISTOEY. 155 

war for the purpose of preventing tlie accumulation 
of a debt, that they should be now called uj)on to pay 
the interest and eyentually the principal of bonds 
representing the reckless issues of bills of credit by 
sister States, and thus to tax themselves for the free- 
dom from taxation which their neighbors had enjoyed. 
The plan of Hamilton finally prevailed on a very 
close vote. During the second year of the Union 
under the Constitution a bill was passed to locate 
the seat of Government for ten years at Philadel- 
phia, and thereafter permanently on the Potomac. 
This measure was passed only by combining there- 
with the assumption of the State debts, as a com- 
promise measure. During the third year of Wash- 
ington's administration a division arose in the 
Cabinet, which subsequently resulted in a party 
division on the bill to incorporate the Bank of the 
United States. Jefferson and Madison were of the 
conviction that it was an unconstitutional measure 
and had a tendency to corrupt the powers of gov- 
ernment. Hamilton and Knox, members of the 
Cabinet, gave their written opinions in favor of the 
President signing the bill. Ptandolph was also 
opposed to it. It is fair to say, however, that the 
Republican party, which subsequently became the 
Democratic-Pepublican, and later the Democratic 
party, drew considerable accession of strength from 



156 COITSTITUTIONAL HISTOEY. 

the Federalist party in process of time, because 
the loyalty of the Republican party to the Con- 
stitution since its adoption could scarcely be 
questioned. Opposition to the Constitution itself 
had well-nigh died out. There was room and 
reason, however, for the existence of a party of 
strict constructionists of the powers conferred, 
actuated by a strong determination to confine in 
every possible way the Federal party to keep 
within the limits of federal power and to assert the 
local rights of States as to all matters not con- 
ferred by the Constitution to federal control. The 
firm conviction had taken root in the minds of 
many able men in the Unifced States, of which 
Jefferson was the leader, that State organizations 
were the only form in which the liberty of the cit- 
izen could be preserved, and that a nation of the 
territorial extent and diversity of interests of the 
United States would in time become a centralized 
power sufficently strong to crush out individual 
liberty unless there existed in the form of States 
quasi independent governments — as imperium in 
imperio sufficiently powerful to make head against 
the centralized Government. 

During the administration of Washington, the 
divergence of the ideas represented by Thomas 
Jefferson and those represented by Alexander 



THE POST-CONSTITUTIOIS^AL HISTOEY. 157 

Hamilton, became more and more marked, so that 
as early as June, 1794, Jefferson felt constrained to 
retire from Washington's Cabinet. During part of 
the time of Washington's administration, the rela- 
tions towards both France and England had become 
critical, but Washington's tact overcame tho diffi- 
culties, and the causes of irritation, although not 
entirely removed, were for the time being avoided. 
Washington refusing to be a candidate for a third 
term, caused the election, in 1796, of John Adams 
and Thomas Jefferson as respectively President and 
Vice-President of the United States. It will be 
remembered that the election was then held be- 
fore the new amendment took effect under the 
original clause of the Constitution, by which both 
great parties in the United States were substan- 
tially represented in the offices respectively of 
President and Yice-President ; because under the 
original clause he who had the largest number 
of votes became President, and the one next 
in number became Yice-President. Therefore, 
Adams, representing the Federalist party, be- 
came President of the United States, and Thomas 
Jefferson, who was then the leader of the Repub- 
lican party, became the Yice-President. Madison, 
who had heretofore acted between the two parties, 
became at that time, with Jefferson, one of the 



158 COlN'STITUTIOIfAL HISTOEY. 

leaders of tlie Republican party. During Adams' 
administration the party lines became more closely 
drawn, and there was considerable accession of 
strength to the Republican party as measure after 
measure was introduced and debated, which seemed 
to indicate a centralization of political power. 
Another one of the reasons why the Republican 
party grew in strength about that period, was, that 
there were incessant petitions for the abolition of 
slavery introduced in Congress, and whilst Congress 
protested in several instances that it had no right 
to interfere with domestic slavery in the United 
States, the Southern and Middle States felt that 
their safety against the ultimate interference in that 
particular by the United States Government rested 
upon the general acceptance of the States rights 
doctrine insisted upon by the Republican leaders. 

During the first year of Adams' administration 
(1797) affairs with France became complicated by 
reason of the war then waging between France and 
England, in which France insisted that America, 
her former ally, should, if not openly aid the 
French republic, at least take a position of armed 
neutrality as against England. The decrees of 
the French republic which injuriously affected 
American commerce led to a rupture of diplomatic 
relations, and caused, in the following year, the 



THE POST-COIS'STITUTIOIS'AL HISTOEY. 159 

passage of tlie Alien and Sedition laws, the Alien 
law empowering the President to expel such per- 
sons as he might find who were plotting against the 
public peace, and the Sedition act being designed 
to restrict the freedom of speech and liberty of the 
press. The passage of these measures by the Fed- 
eral party added to its unpopularity. The desire 
on the part of the people of the United States to 
preserve peace, caused them to look with grave 
suspicion upon the active preparations which were 
then made for war. In the year 1800 a condition 
of irritation, almost of war, already existed between 
France and the United States. But with the disso- 
lution of the French Directory in 1799, and the ac- 
cession of Napoleon as First Consul of the French 
republic, a treaty was soon concluded. The year 
1800 also witnessed the first caucus nomination for 
Presidential candidates in the United States under 
the Constitution. In 1800 an election took place 
for President of the United States, to take the place 
of Adams. When the electoral votes were counted, 
in February of the following year, it was found that 
no election had taken place, as Aaron Burr and 
Thomas Jefferson had an equal number of votes, 
and the choice under the Constitution devolved on 
the House of Eepresentatives, which, on the thirty- 
sixth ballot, elected Mr. Jefferson President. 



160 COlSrSTITUTIOITAL HISTOEY. 

A breach had taken place between the two great 
leaders of the Federal party, Adams and Hamilton, 
immediately prior to the election of Jefferson, 
which weakened the Federal party considerably, 
and caused the success of the Republicans. Dur- 
ing this contest between Jefferson and Burr for the 
Presidency, each one having had seventy-three 
votes in the Electoral College, Hamilton cast his in- 
fluence in favor of Jefferson and led to his election. 
This and subsequent acrimonious contests between 
Hamilton and Burr, caused the unfortunate duel 
between them in 1804, which cost Hamilton his life. 

The dangers to the country which this struggle 
for the Presidency disclosed, led to the adoption of 
the twelfth amendment, by which the President 
and Yice-President are voted for by the Electoral 
College separately on distinct lists, and each inde- 
pendently of the other. 

Jefferson introduced, when Congress met after 
his election, the innovation to send a message to 
Congress instead of opening Congress in person. 
It savored too much of British forms for the Presi- 
dent to open Congress in person, and hence the 
Republican paity, to show its contempt for mon- 
archical institutions, adopted, through the instru- 
mentality of Jefferson, the form which has since 
been followed by every President of the United 



THE POST-CONSTITUTIO]SrAL HISTORY. 161 

States, of not meeting Congress in person, but of 
sending messages, as from time to time his views 
to Congress are to be expressed. 

The leading incident of Jefferson's first few years 
of administration was the purchase of Louisiana 
from Napoleon for $15,000,000. Louisiana as then 
ceded was a territory out of which ten States (in- 
clusive of Avhat is now known as Louisiana), three 
Territories, and a large part of two other States 
have since been carved. 

Jefferson continued in office during two terms, at 
the end of which the electoral votes were cast for 
James Madison and George Clinton. This was 
again a Republican triumph. As early as 1805 the 
Federal party was reduced to seven senators and 
twenty-five members of the House. The parties 
divided on the Embargo Act, and already what sub- 
sequently developed into a war with Great Britain, 
arising from the impressment of American seamen 
and interference with American ships, was looming 
up, as it was claimed that in the war between Eng- 
land and France almost six thousand American- 
seamen had become impressed in the British navy. 
The embargo was intended as an act of retaliation 
against both England and France for the mischie- 
vous effect upon American commerce of the Milan- 
Berlin decrees and the British Orders in Council. 



162 COiq^STITUTIONAL HISTOEY. 

During tlie administration of Madison war was 
declared against England on the 18th of June, 1812, 
which lasted until December 24th, 1814, when a 
treaty of peace was signed at Ghent, although the 
actual hostilities continued until February, 1815, 
when the news of the signing of a treaty first reached 
America. 

During the war the Federal party fell into utter con- 
fusion and disgrace in consequence of its opposition 
to the war and because of the call of the convention 
known as the Hartford Convention, in which some 
of the New England federalists strongly announced, 
through their representatives there, the theory of 
secession, if the war should be prosecuted much 
longer, as it was claimed that the war was destruc- 
tive of the interests of the Eastern States, while it but 
remotely affected the Middle and Western States. 
The successful termination of the war strengthened 
the Republican, or Republican-Democratic party, 
as it was then called, to such a degree that it domi- 
nated in almost every State in the Union. The 
result of the war was the swelling of tho debt to 
more than $127,000,000, but the moral results from 
it were on the whole beneficial, because the gal- 
lantry with which the navy was handled, and the 
battle of New Orleans, fought under General Jack- 
son on the American side, gave to the American 



THE POST-COXSTITUTIO^AL HISTOET. 1G3 

people a degree of self-reliance whicli largely de- 
veloped the growth of a spirit of national feeling 
in the United States. 

The charter of the Bank of the United States 
having expired in 1811, it was reorganized in 1816, 
with a capital of $35,000,000. Within a compara- 
tively short period the method of its administration 
produced a speculative era which brought in its 
train a financial crisis and distress. 

The main political questions which agitated the 
'people of the United States during the period of 
Madison's administration concerning the relations 
of the United States with England vfere war or 
anti-war before the war broke out, and a vigorous 
prosecution of the war or a discontinuance of it 
whilst it was in operation. It was during the latter 
part of this period that Webster made his first ap- 
pearance in the Congress of the United States, and 
commanded immediate attention by his eloquence 
and talent for debate. 

At the close of Madison's administration the thir- 
teen States of the Union had already grown into 
nineteen, the population of 4,000,000 had grovv^n to 
almost 10,000,000, and the House of Representa- 
tives had grown to a body of 213 members. 

In 1816 James Monroe, the Eepublican-Demo- 
cratic candidate, was elected President. The second 



164 COI^STITUTIOiS^AL HISTORY. 

year of Monroe's administration witnessed the com- 
mencement of tlie struggle on the slavery question 
between the Northern and the Southern States, 
which culminated in the War of the Rebellion in 
1861. On the bill to authorize the people of the 
Territory of Missouri to form a constitution and 
State government, and for its admission into the 
Union, Mr. Talmage, of New York, offered the fol- 
lowing proviso : " Provided that the further intro- 
duction of slavery or involuntary servitude be pro- 
hibited, except for the punishment of crimes whereof 
the party shall have been convicted, and that all 
children born within said State after the admission 
thereof into the Union shall be free at the age of 
25 years." This raised a storm, which was only 
quieted for a time in the year following by the 
Missouri Compromise. This came about by an 
attempt to pass the bills to admit Missouri and 
Maine as States together, in one bill, restricting 
slavery in them. The measure which was passed 
eventually was the prohibition of slavery from the 
rest of the Louisiana accession north of the 36° 30' 
north latitude. During this year Florida was ceded 
by Spain, and the eastern boundary of Mexico was 
fixed at the Sabine River, thus transferring Texas, 
which was debatable ground as to whether or not 
it came to the United States with the Louisiana 



THE POST-COjS^STITUTIOJN^AL HISTORY. 165 

purchase, to Spanish rule as part of the nego- 
tiation which resulted in the Florida purchase. 
The actual exchange of ratifications, however, did 
not take place until 1821. In 1821 Monroe entered 
upon his second term. During that year the Mis- 
souri struggle came up again on the 'application of 
Missouri for admission, after the passage by her of 
a State Constitution. During that year Henry 
Clay, by reason of his great services as pacificator 
between the North and the South, became a recog- 
nized leader in American politics. 

The message of Monroe to Congress in 1823 
announced for the first time the doctrine of oppo= 
sition on the part of the United States to in- 
tervention on the part of European governments 
in the affairs of states and governments othan than 
the United States on the North American con- 
tinent, claiming a sort of protectorate in that 
particular for the United States, at least in so far 
as to insist against non-intervention of European 
powers in the affairs of governments on the North 
American continent. This doctrine has become 
known as the "Monroe doctrine," and was ex- 
pressed in these terms : "We owe it, therefore, to 
candor and to amicable relations existing between 
the United States and those powers (the European 
powers) to declare that we shall consider any 



166 CO]S^STITTJTIO]S"AL HISTOEY. 

attempt on their part to extend their system 
to any portion of this hemisphere as dangerous 
to our peace and safety. With the existing 
colonies or dependencies of any European power 
we have not interfered, but with the Govern- 
ments which have declared their independence, 
we have, on great consideration, and on just 
principles, acknowledged, we could not view 
any interposition for the purpose of oppressing 
them or controlling in any other manner their 
destiny as any other than an unfriendly dis- 
position towards the United States." This was 
called out by what was supposed to be the 
design of the Holy Alliance to extend a fostering 
care to the young American republics of Spanish 
orisfin. 

The year 1824 witnessed the first sectional 
struggle upon the tariff question, the North and 
Middle States voting in favor of a protective tariff, 
the South voting solidly against it. 

At the end of Monroe's administration the pub- 
lic debt had been reduced from $123,000,000 to 
$90,000,000, and the country was in a state of re- 
markable prosperity. 

In the autumn of 1825 John Quincy Adams, 
again a Republican, was elected President of the 
United States by the House of Representatives, 



THE POST-CO]S'STITUTIO]^AL HISTOEY. 167 

in consequence of a failure to elect by the Elect- 
oral College. John C. Calhonn was elected Yice- 
President. 

An attempt was made during the early years of 
President Adams' administration to amend the 
Constitution as to the mode of electing the Presi- 
dent of the United States by having him elected 
directly by the people in Congressional districts. 
Although the proposition met with approval in 
both branches of the American Legislature, it 
failed to obtain the necessary two-thirds vote in 
both branches, and therefore no further steps were 
taken. 

In February, 1826, the republics of South America 
made a proposition to the United States to deliber- 
ate with them upon measures for common advan- 
tage, at a Congress to be held at Panama. This 
led to serious opposition on the part of the 
South, for the reason that as some of the South 
American republics had recognized the equality of 
the negro by admitting him to citizenship, it was, 
as they claimed, an indirect way of recognizing 
negroes as citizens. The debate upon this pro- 
position intensified the feeling in Congress on the 
slavery question, and was the clearest possible 
demonstration that the Missouri ComDromise, which 
was intended forever to allay all bitterness upon 



168 CONSTITUTIO]N^AL HISTOEY. 

tliis subject, fell sliort of what was expected from 
it. Tlie feeling of mutual distrust between the 
Noxthern and Southern States was still further in- 
creased by the tariff legislation of 1828. The 
duties were made higher, and the people of South 
Carolina petitioned their Legislature "to save them 
if possible from the conjoint grasp of usurpation 
and poverty." They declared that the citizens of 
South Carolina would be condemned to work as 
tributaries of the Northern and Middle sections of 
the Union under such tariff legislation. The Leg- 
islature of Georgia protested against the tariff act 
in 1829, and the Legislature of South Carolina 
during the same year made a solemn protest against 
the same measure. 

Andrew Jackson was elected President of the 
United States in 1828, with Calhoun again as Yice- 
President during his first term, and Martin Yan 
Buren as Yice -President during his second term. 
General Juckson in his inaugural address stated 
that the popular sentiment declared in a manner 
too legible to be overlooked, the task of reform, 
the duty of the administration. This, he inter- 
preted in practice, meant that he was to remove 
the office-holders of the former administration, and 
during the first year of his administration he made 
upwards of seven hundred removals from office on 



THE POST-CONSTITUTIONAL HISTOEY. 169 

political grounds, without including subordinate 
clerks, whereas during the forty years preceding 
there had been but sixty-four removals. This 
system of wholesale removal, not on the ground of 
the unfitness of the occupant for the position, but 
because his views were not entirely in harmony 
with the administration, on matters which but re- 
motely, if at all, affected the duties of his office, 
inaugurated the "spoils " system in American poli- 
tics. Subsequently upon every change of Presi- 
dential incumbents, by the election of chiefs of 
party differing from the party then in^ower, a 
decapitation of public officials took place, so that it 
became an accepted principle as to tenure of office 
in the United States, that appointments were for 
the four years only during which the President 
was elected, and whether the appointment was to 
continue thereafter depended entirely upon the 
accident whether there would either be a subse- 
quent term for the same Presidential incumbent, or 
whether the same party would remain in power, 
and therefore the same influences which caused the 
appointment could be kept at work to continue the 
incumbent in his position. 

In his very first message to Congress General 
Jackson again recommended an amendment to the 
Constitution, giving to the people the direct election 



170 CONSTITUTIOITAL HISTOEY. 

of the President. No steps, howeyer, were taken 
by Congress to submit that question for ratification 
to the people. 

The nullification doctrines, by which is meant the 
doctrine of the right of the States to refuse obe- 
dience to laws of the United States when they are 
supposed to be inimical to their interests, were 
openly avowed by some of the Southern States, 
notably South Carolina, and the Yice-President of 
the United States. Mr. Calhoun was the recognized 
chief of the party of nullification, and gave to it 
whatever intellectual impulse and theoretical basis 
it had. The feeling between President Jackson and 
the Yice-President upon this subject became so 
marked, that in March, 1831, the entire Cabinet, 
with the exception of the Postmaster-General, re- 
signed. 

The charter of the United States Bank once more 
expiring by limitation, the President of the United 
States took a determined stand against its re- 
newal. In his annual message, he said : " Nothing 
has occurred to lessen in any degree the dangers 
which many of our citizens apprehend from that 
institution as at present organized." 1831 also 
witnessed the organization of the Mormon settle- 
ment at Kirtland, and also in Missouri. 

During the session of 1832 the Senate and House 



THE POST-COlSrSTITUTIOlS'AL HISTORY. 171 

of Eepresentatives passed a bill to re-charter the 
bank of tlie United States, but the President vetoed 
it, and the vote two- thirds of both branches conld 
not be obtained to pass the act over the President's 
veto. 

In November of the same year, South Carolina 
passed an act to nullify the tariff bill of Congress on 
the ground that it was an unconstitutional measure, 
and in December of the same year, the President 
issued a proclamation to warn the citizens of South 
Carolina from engaging in acts of resistance, sent 
troops to Charleston under General Scott to enforce 
the laws, and stated in his declaration that if South 
Carolina could nullify the revenue laws of the 
United States, every other State could do so, and 
therefore no revenue could by any possibility be 
collected, as all imposts must be equal. In January 
following. President Jackson published his nulli- 
fication message, and there was danger of an im- 
mediate conflict between the State of South Caro- 
lina and the United States Government, which was 
avoided only by the passage of a modification of 
the tariff of 1828, by an agreement annually to 
reduce one-tenth of the duties for seven years, at 
the end of which time all of the. excess of the 
duties above twenty per cent, should be equally 
divided into two parts, and one part struck off at the 



172 CONSTITUTIONAL HISTOEY. 

end of one year and tlie ofher at the end of the fol- 
lowing year ; so that at the end of nine years all 
duties should be reduced to twenty per cent, on 
value. It was declared that this act was to be per- 
manent. The bill passed both Houses, and allayed 
the discontent, and prevented at that time the ne- 
cessity for resort to arms. 

During the recess of Congress, after his inaugu- 
ration for the second time in 1833, Jackson removed 
the deposits from the United States banks. This 
caused the bank, as a matter of retaliation to con- 
tract its loans, which in turn produced a commer- 
cial crisis, and great financial distress, which con- 
tinued down to 1838. In the interval, the United 
States Bank suspended payment, and finally became 
insolvent. 

During Jackson's administration there were 
three parties in the United States : the Democratic, of 
which Jackson was at the head ; the Anti-Masonic, 
and the National Eiepublican. 

The old Republican party had before that time 
changed its name to the Democratic party, and was 
technically known as the Democratic-Republican 
party, by which name it has preserved its organiza- 
tion down to the present time. 

Martin Yan Buren became the nominee of the 
Democratic party towards the end of the Jackson 



THE POST-CO]^STITUTIO]N"AL HISTORY. 173 

administration, and then for the first time the "Whig 
party made its appearance as an offshoot of the 
National Republican party — the name Whig, for 
the last named party, appeared for the first time in 
an election in 1834. 

During the administration of Jackson the United 
States debt was substantially extinguished. When 
his administration commenced the public debt 
amounted to $58,500,000, and when it ended it 
amounted to but $291,089. The debt was not 
wholly extinguished, simply because the bonds 
were not handed in for payment. The exports of 
the United States had risen from $72,000,000 to 
$128,000,000, at the end of his administration, and 
the imports from $74,000,000 to $190,000,000. 

The division of parties at this time arose 
mainly from the difference of construction of the 
powers of the United States Government, and was 
in another form the continuation of the struggle 
which commenced before the Constitution of the 
United States was framed, between the powers of 
the States and of the United States, and after it 
was adopted the contest continued upon the con- 
struction to be given to the Constitution of the 
United States. It will be remembered that at the 
time of the formation of the Constitution a large 
proportion of the leading and influential citizens of 



174 COITSTITUTIOIJTAL HISTOEY. 

the country were opposed to the merging of the 
State sovereignties and that of the United States 
under the form in which this was accomplished by 
the Constitution of the United States. After the 
Constitution was adopted and the power of the 
United States grew both at home and abroad, and 
the prosperity of the community developed, this 
form of opposition was entirely extinguished, but 
was transmitted into a strict construction of the Con- 
stitutional powers granted. When the Republican 
party, however, came into power, the Federalists 
or Loose Constructionists, for the purpose of limit- 
ing the power of their opponents, found themselves 
in a position to be compelled to adopt almost wholly 
the language of their former opponents, and thus 
strangely enough became the Strict Constructionists, 
in the earlier period of the Republican success under 
Jefferson to the extent that in the Hartford Conven- 
tion they asserted in as ultra form as was subse- 
quently asserted by some of the Southern State's, the 
right of the States to nullify Congressional legisla- 
tion if they deemed it unconstitutional. The success 
of the war of 1812 caused the Federalist party so 
utterly to fall into disgrace that it became extin- 
guished as a party organization. The desire to 
use the credit of the United States for purposes of 
Internal improvement, and the growing influence of 



THE POST-CONSTITUTIOIS^AL HISTOEY. 175 

the manufacturing classes, caused a new organiza- 
tion — the Whig organization — to arise, which again 
in its tenets and its tendencies resembled the Fed- 
eral party. They claimed the right to use the funds 
of the Union for purposes of internal improvements, 
and to have the United States subscribe or loan its 
credit for the purpose of internal improvements in 
various States, and to use the revenue system of 
the United States for the purpose of encouraging 
domestic manufactures, to grant subsidies and to 
build up manufacturing industries of the nation at 
the expense of the commercial and agricultural in- 
terests. 

At the time of the inauguration of Martin Van 
Buren as President of the United States, the con- 
test which theretofore had been carried on between 
Congress and the President, by the passage of bills 
favoring internal improvements and which were 
vetoed by the President, continued, so that at the 
time of the opening of the 13th administration the 
lines between the Whigs and Democrats were 
closely drawn upon those questions. Yan Buren's 
administration began under circumstances of extreme 
financial distress. Excessive issues of paper- money 
had caused reckless speculation and raised the 
prices of lands far beyond their actual value, and 
the sudden calling in of loans in the spring of 1837 



176 COl^STITUTTOKAL HISTOEY. 

resulted in a suspension of specie payments by the 
banks wbicli precipitated a commercial and financial 
panic of tlie utmost severity. The President then for 
the first time recommended a plan of sub-treasury 
deposits, for the purpose of preventing at any future 
time a further copartnership between the Govern- 
ment and the banks, and to have for the Govern- 
ment substantially its own depository and disburs- 
ing agents throughout the United States. In 1840, 
by a small majority, this independent treasury 
scheme became successful ; but indications were 
already but too abundant that the Whig party, 
making capital of the financial and commercial dis- 
tresses of the Van Buren administration, and at- 
tributing it largely to the fact that the Government 
refused to lend its aid to internal improvements, 
and that it had bankrupted the banks in consequence 
of the organization of the independent treasury 
plan, was gaining ground in the United States, and 
would probably obtain control of the Government 
at the next Presidential election. In 1839 the 
Abolitionist, or the Liberty party, made, for the first 
time, Presidential nominations. At the Presidential 
election in November the Whig electors were elect- 
ed throughout the United States, except in two 
Northern and ^Ye Southern States. In these the 
Democratic electors were chosen. The nominees 



THE POST-COlSrSTITUTIOlN'AL HISTOEY. 177 

of the "Whig party, Gen. Harrison and John Tyler, 
were elected respectively President and Yice-Presi- 
dent of the United States. Just one month after his 
inauguration, President Harrison died. This was 
the first time that a President died in office, and 
the Yice-President, John Tyler, under the Consti- 
tution became the chief Executive officer for the 
unexpired term. Mr. Tyler was known at the time 
of the election not to be strongly in sympathy with 
the Whig party, and he was placed upon the 
ticket as a matter of concession to the Southern 
element and with the view of catching Democratic 
votes. The breach between him and the party that 
elected him was precipitated almost immediately 
after his accession to the Presidential chair, by his 
veto of the bill to incorporate the fiscal bank of the 
United States. 

The Whig party succeeded in the next congres- 
sional election, upon the platform of the reestablish- 
ment of a national bank and its promise to pass in- 
ternal improvement bills. The veto of the bill 
caused a conference between the President and the 
leaders of the House and of the Senate, to bring about 
an agreement as to a bill that he would consent to. 
Such a bill was drawn, and it was claimed that it re- 
ceived the approval of the President ; but after its 

passage he vetoed it, in consequence of which his 

8* 



178 CO]S^STITUTIO]S"AL HISTOEY. 

whole Cabinet, with, the exception of Mr. "Webster, 
resigned. The President was then thrown entirely 
into the hands of the Democratic party, and the 
Whigs who had the majority in Congress, re- 
garded him as an antagonistic and democratic 
President. 

The northeastern boundary controversy, which 
was at that time one of the questions in dispute 
between America and Great Britain, was adjusted 
between Lord Ashburton and Webster by the treaty 
known as the Ashburton treaty, in 1842. 

During the years 1843 and 1844 the annexation 
of Texas became an important party question. The 
South, apprehensive of the development of popula- 
tion in the northwestern territory and the rapid 
formation of free States, which threatened to en- 
danger the system of domestic servitude, deter- 
mined with the aid of the President to extend its 
territory in the southwest and to annex Texas 
■ — out of which many States could be carved— to 
the United States. Texas had been in part 
settled by adventurers from the States. Its 
original Spanish population was largely merged 
by intermarriage with Americans, and many of 
the Mexicans were driven back toward the Bio 
Grande. On the 2d of March, 1845, the bill to 
annex Texas was finally passed. Florida was 



THE POST-CONSTITITTIOIN'AL HISTOEY. 179 

also admitted as a State, tlius adding to the slave 
power. 

In November, 1844, James K. Polk was elected 
President of tlie United States, lie being a Demo- 
cratic candidate, and George M. Dallas Yice-Presi- 
dent. The newly-elected President, on taking his 
seat, committed himself fally to the policy of Tyler 
with reference to Texas, and immediately ordered 
possession to be taken of the territory by the troops 
of the United States. General Taylor took command, 
and pushed its occupation almost to the E-io Grande. 
Without any formal declaration of war, a conflict 
was precipitated between the Mexican troops and 
the American troops, and in the midst of the ex- 
citement arising from the news of this clash of arms 
between the Mexican troops and the United States 
army, in which the army of the United States proved 
successful, Congress was called upon to declare that 
a state of war existed betv/een the United States 
and Mexico, and to make the necessary appropria- 
tion for carrying it on with effect. The army of 
occupation was then superseded by an army under 
General Scott, to take possession of the City of 
Mexico itself, and in a series of uninterrupted vic- 
tories, Mexico was captured and peace dictated. 
A treaty was formed between the Mexican Congress 
and the American Commissioners, by which the 



180 CONSTITUTIOlSrAL HISTOEY. 

independence of Texas was recognized and its an- 
nexation to tlie United States confirmed. This 
extended the territory of the United States on the 
southwest to the Kio Grande Eiver from El Paso 
to its mouth. In addition to this, the territory of 
New Mexico and Upper California was ceded. For 
this cession of additional territory the United States 
paid Mexico llSjOOOjOOO, and assumed the payment 
of some $3,500,000 due to Mexico from certain citi- 
zens of the United States. By a subsequent pur- 
chase, for $10,000,000 more, known as the Gadsden 
purchase, an additional territory was acquired. 

During the period of the carrying on of the war 
with Mexico for the acquisition of Texas, the Anti- 
Slavery party, in consequence of the aggressive 
spirit shown by the South, and the determination 
to extend the slavery territory, became more and 
more formidable, and on the debate on the Wilmot 
proviso — a provision to prohibit slavery from all 
territory to be acquired from Mexico — it was ap- 
parent that a considerable accession of strength 
to the anti-slavery element had already been made 
among the United States representatives. 

The tariff struggles, the war with Mexico, and 
the question of the limitation of slavery in the newly 
acquired territory, in all of which the South pre- 
vailed, were the main political questions which 



THE POST-CONSTITUTIOI^AL HISTOEY. 181 

divided parties during the Polk administration. In 
1846, the Oregon question was settled by a treaty 
with England, by which the boundary line was fixed 
at 49° north latitude, instead of 54'' 40', as originally 
claimed by the United States. In 1848, the Demo- 
cratic party nominated Mr. Cass for President, and 
Mr. Butler for Vice-President. The Whig national 
convention nominated as the candidate for President 
Gen. Zachary Taylor, who divided the honors of 
the brilliant success of the Mexican war with Gen. 
Scott, and Millard Fillmore for Yice-President. The 
parties, as declared in their platforms at that time, 
divided on the free trade and protection question, 
the Democratic party insisting that no more revenue 
should be raised than is required to defray the ne- 
cessary expenses of the Government ; that justice 
and sound policy forbade the federal Government 
to foster one branch of industry to the detriment of 
another, and that Congress had no power under the 
Constitution to interfere with or control the ques- 
tion of slavery ; on the other hand, the Whig party 
claimed as its fundamental principles, no extension 
of slave territory by conquest ; protection to Amer- 
ican industry, and the loan of the credit of the 
United States for the purpose of internal improve- 
ments. An offshoot of the Democratic party, known 
as the Free Soil party, at the same time nominated 



182 CONSTITUTIOI^AL HISTOEY. 

Martin Yan Buren, and Gen. Dodge of "Wisconsin. 
Its division from tlie Democratic party arose mainly 
on the question of extension of slavery to the ter- 
ritories ; they agreed with the "Whigs upon the 
question of river and harbor improvements, that 
they were objects of national concern, and that it was 
the duty of Congress, in the exercise of its consti- 
tutional power, to provide therefor. In this tri- 
angular fight, the Whigs succeeded in electing 
their President, and consequently Gen. Taylor, of 
Louisiana, and Millard Fillmore, of New York, 
were respectively inaugurated on the 4th of March 
1849, President and Yice-President of the United 
States. Mainly in consequence of the Mexican 
war, the public debt of the United States had again 
increased to $48,000,000. 

The total population of the United States at that 
time was a little upwards of 23,000,000. The acqui- 
sition of new territory by the United States Govern- 
ment reopened the old Missouri Compromise ques- 
tion, and it was resolved, mainly through the 
instrumentality of the Southern leaders that the 
territories should themselves determine whether 
or not they should recognize slavery or prohibit it 
within their own borders, in the event of their 
becoming States. This right was known as " squat- 
ter sovereignty." The newly- arrived emigrant of 



THE POST-COIN^STITUTIOIS^AL HISTORY. 183 

any territory, usually occupying lands of tlie 
United States which in time by improvements be- 
came his own under the laws of the United States, 
was known as a " squatter." The South calculated 
upon the superior activity of its own number, and 
somewhat upon their aggressiveness, to hold in 
awe and check the more peaceably inclined set- 
tlers from the Eastern States and from Europe, 
and that by the terrorism that they could exercise 
they could thus secure a large proportion not only 
of new States closely contiguous to the territory of 
the old slave States, but also invade some of the 
Northwestern territory, and thus prevent the power 
of free States from spreading in that direction. 
The first rude shock of disappointment to this 
calculation came through the finding of gold in 
California. This caused so great a migration from 
the Eastern States to the Pacific coast of strong 
and fearless men that within the very territory 
that they supposed to be exclusively their own, and 
which would have been their own by law under the 
old Missouri Compromise had it not been repealed 
by them, the Southern States found their pet insti- 
tution utterly outvoted and routed, and California 
made application as a free State, by a majority so 
overvfhelming that its admission in 1850 could not 
be rejected by the then pro-slavery Congress of 



184 COITSTITUTIOI^^AL HISTOEY. 

the United States. However, the feelings of dis- 
appointment arising from the result of this mis- 
taken calculation were so great, together with the 
suspicion that it had been largely due to the rapid 
accession of strength of the Anti-slayery party 
both in numbers and in influence, that another 
compromise bill came up for discussion, by which 
it was agreed to form the Territories of Utah and 
New Mexico without any reference to slavery, to 
admit California as a free State, to pay Texas 
$10,000,000 for the surrender of its claims to the 
Territory of New Mexico ; together with the pas- 
sage of a most stringent bill to return fugitives 
from justice and persons escaping from the service 
of their masters. The slavery question entered 
upon a new phase on the introduction of a bill to 
organize the Territory of Nebraska in February, 
1853. During the few years intervening from 1850 
to 1853 great bitterness arose in some of the 
Northern States on the subject of the Fugitive Slave 
bill. The provisions of the bill gave to United 
States commissioners the power, without judge or 
jury, to return fugitives from justice, and prohibited 
State couri^ from issuing writs of habeas corpus for 
the purpose of testing the question of the right of 
the return of the claimed fugitive, denying to the 
States the right to try the title of the master to the 



THE POST-COT^STITITTIOI^^AL HISTOEY. 185 

slave. Some of the States refused to enforce tlie 
law, notably Massachusetts, and even passed laws to 
prohibit its enforcement. When the political parties 
met in 1852 the question of slavery was the main 
one before them. Both the Whig and Democratic 
parties vied with each other in assurances to protect 
slavery within the States, the Democratic party 
declaring that Congress had no power under the 
Constitution to control this " domestic institution " 
of the Southern States, and that all the efforts of 
the Abolitionists made to induce Congress to inter- 
fere with questions of slavery had a tendency to 
diminish the happiness of the people and endanger 
the stability and permanency of the Union, and 
they pledged themselves to abide by and faithfully 
execute the acts known as the Compromise measure 
settled by Congress, and more especially the Fugi- 
tive Slave act. The Whig convention declared that 
the series of acts of the Thirty-second Congress, 
known as the Fugitive Slave law, are received and 
acquiesced in by the Whig party in the United 
States as a settlement in principle and substance 
of the dangerous and exciting questions which they 
embrace, and they promised that so far as they 
were concerned they would maintain them and 
insist upon the strict enforcement thereof. There- 
fore, upon the main question of slavery, the Demo- 



186 CONSTITUTIOT^AL HISTOEY. 

cratic and Whig parties, tlie two leading parties, 
alike expressed almost in tlie same terms their 
determination to carry out faithfully the Com- 
promise measure of 1850, and to enforce the 
Fugitive Slave law. The only protest of any 
national party against this subserviency to the 
slave power came from the Free Soil Democracy, 
which nominated Mr. Hale, of New Hampshire, and 
Mr. Julian, of Indiana, respectively for President 
and Vice-President, and in their platform declared 
that the Fugitive Slave laws were repugnant to the 
Constitution, to the spirit of Christianity, and to the 
sentiment of the civilized world. They insisted that 
no permanent settlement of the slavery question 
could be looked for except in the practical recogni- 
tion of the truth that slavery is sectional and freedom 
national. The Democratic party succeeded in elect- 
ing its President by an overwhelming majority, and 
Franklin Pierce and William E. King, the nominees 
of that party, were elected in 1852, and inaugu- 
rated on March 4th, 1853, respectively as President 
and Vice-President of the United States. 

During the early part of President Pierce's 
administration, the organization of Kansas and 
Nebraska as Territories was the all-absorbing sub- 
ject of discussion. The proximity of Missouri to 
both of those territories, Missouri being a slave 



THE POST-CONSTITUTION^AL HISTOEY. 187 

State, made tlie Soutliern people feel themselves 
secure that they could control the organization of 
the Territories if to the Territories were left the 
determination of the question of slavery or not within 
their limits, and a large number of pretended settlers, 
known as border ruffians, immediately migrated 
from Missouri into Kansas and Nebraska, and or- 
ganized a territorial government in favor of slavery. 

The bill abrogating the Missouri Compromise of 
1820, known as the Kansas-Nebraska bill, was 
passed in May, 1854, and for several years the so- 
called " Kansas war " was carried on between the 
partisans of slavery and anti-slavery — a war not 
merely in name, but which involved considerable 
bloodshed. Congress recognized the pro-slavery 
constitution, known as the Leavenworth Constitu- 
tion, and the Governors who were appointed by 
President Pierce were appointed with the view to 
influence these Territories to carry out the pro- 
slavery programme by the organization of pro- 
slavery Constitutions for their admission as States. 

During 1854 the claim was made that the Com- 
promise bill of 1850 had abolished the compromise 
of 1820, and that therefore the new States to be 
admitted north of the Missouri line could be invaded 
by the slave power as well as those south of the 
Missouri line. The debates during Pierce's admin- 



188 COI^STITUTIOT^AL HISTOEY. 

istration in Congress resulted in a division between 
Northern and Southern Wliigs, the Northern Whigs 
calling themselves anti-Nebraska men. The North- 
ern Democrats were evenly divided on the Kansas- 
Nebraska measure, and the Southern Democrats 
acted as a unit. During the same period a new 
party came into existence, known as the Know- 
Nothings, which was subsequently called the 
American party. As its name indicates, it was 
opposed to elevating to office any but natural born 
American citizens, or those who had lived long 
in the country. It was strongly anti- Catholic in 
feeling. For a short time it became a national 
party, and in 1855 carried nine of the State elections, 
and in 1856 nominated Presidential candidates. In 
1856, the anti-Nebraska party adopted the name of 
the Republican party. It was largely composed of 
the elements of the Whig party. The whole of the 
Northern Whig element entered into it, and it 
obtained considerable accession of strength from 
the Democratic party, as it was the only formidable 
organization which resisted at that time the de- 
mands of the slave power as to the spread of slavery 
into the new Territories. 

The conflict in Kansas created a very considerable 
amount of bitter feeling throughout the United 
States, more especially in the Eastern States, where- 



THE POST-COIS'STITUTIONAL HISTOKY. 189 

in the cry of " bleeding Kansas " cansed a large 
amount of money to be collected, which was ex- 
pended in arms, and sent to the settlers of Kansas 
and Nebraska. The Territory of Kansas was divided 
into a pro-slavery division and a free State one, and 
on the 5th of September, 1855, a convention at To- 
peka repudiated all that had been done in favor of 
slavery, claimed that it was the act and deed of Mis- 
sourians alone, and determined to form a State gov- 
ernment in the interest of freedom. In 1856 the free 
State settlers elected State officers under the Topeka 
Constitution. President Pierce, however, recognized 
the pro-slavery Legislature, and placed United 
States troops under the orders of the Governor to 
enforce the pro-slavery laws of the territory. 

During the discussions on the Kansas question 
in Congress Senator Sumner, the leading Senator 
from Massachusetts, made a speech which was 
deemed personally offensive to Senator Butler, of 
South Carolina, and a representative by the name 
of Brooks, also from South Carolina, struck Senator 
Sumner with a cane, whilst he was seated in his 
chair in the Senate, with such violence that the 
Senator suffered several years from the effects of 
the blow. This incident naturally increased the 
bitterness between the two sections. 

Pending the struggle in Kansas a new election 



190 COIS-STITUTIOI^AL HISTOEY. 

for President of the United States was held, under 
whicb. again the Democratic party was successful. 
James Buchanan, of Pennsylvania, and John C. 
Breckenridge, of Kentucky, were respectively 
elected President and Vice-President of the United 
States, and took their oaths of office on the dth of 
March, 1857. Y>^ithin a few days after the election 
of President Buchanan, the Supreme Court of the 
United States, in the Dred Scott case, decided that 
negroes had no rights or privileges but such as 
those that the political power of the government 
might choose to grant to them, and that Congress 
had no more right to prohibit the carrying of slaves 
into any State or Territory than it had to prohibit 
the carrying of horses or other property, whose 
secured possession was guaranteed by the Constitu- 
tion. The dissenting justices, on the other hand, 
claimed that it was only by State laws that the 
negro was made property, but by the law of na- 
ture and of nations, and even by the Constitution 
of the United States, there was no recognition of 
the slave as property, and that it was only by vir- 
tue of municipal law, the authority of which was 
confined to the territorial boundary of the State, 
that any human being could be regarded as 
property, and the rights of the owner were limited 
to the territory where this special kind of property 



THE POST-CO]^STITUTIO]^AL HISTORY. 191 

was recognized. Tliis decision startled the North- 
ern people of the United States, and a renewed 
effort was made to wrest Kansas and Nebraska from 
the slave power. The South knew that if in this 
struggle Kansas and Nebraska were taken from 
them, their hopes successfully to compete against 
the Northern States, and to maintain the slave 
power rested either in the acquisition of Cuba by 
the Union as a territory out of which to form new 
States, the annexation of part of Mexico, or the 
whole of it, so as to carve out new slave States, or, 
on secession from the Union, and the organization 
of an independent government in which slavery 
could be secured from every possible attack. 

The Kansas struggle lasted until after the elec- 
tion of Mr. Lincoln as President of the United 
States. Two constitutions had been passed in 
Kansas, one known as the Lecompton Constitution, 
with slavery, which claimed to have 6,000 majority ; 
but the free State settlers refused to vote on the 
ground that they were not permitted to vote against 
the Constitution, the only form of ballot being one 
either for the Constitution with slavery or for the 
Constitution without slavery. The President of the 
Senate insisted upon the admission of Kansas as a 
slave State. The House was willing to admit Kan- 
sas with the proviso that the Constitution should 



192 CONSTITUTION^ AL HISTOEY. 

again be submitted to tlie popular vote. No agree- 
ment was arrived at, and some time in 1859 a new 
Constitution was submitted to the people in Kansas 
known as the Wyandotte Constitution, which pro- 
hibited slavery, and received a majority of 4,000 in 
its favor. 

The Kansas struggle, lasting as it did through 
the whole of Buchanan's administration, caused 
party lines to divide sharply in i860 upon the ques- 
tion of slavery. All other questions were merged 
in that all-important one. The Southern States, 
although they had control of the Government and 
control of the Supreme Court of the United States, 
felt themselves beaten at every point by the growth 
of a popular sentiment against slavery which proved 
superior to their astuteness as politicians, the more 
contentious character of their population, aided by 
threats of secession and war in the event of the 
failure on the part of the North completely to sub- 
mit to their dictates. Although they succeeded 
in forcing measures through Congress, they were 
visibly gradually losing strength. The Democratic 
party met in Charleston, South Carolina, on the 
23d of April, 1860, and divided there into two wings. 
At this distance of time the difference between the 
two wings of the Democratic party on the slavery 
question does not seem to have been a very serious 



THE POST-CONSTITUTIONAL HISTOEY. 193 

one. The Southern wing affirmed its confidence in 
the correctness of the Dred Scott decision, and in 
terms said that neither Congress nor the Territorial 
Legislatures had a right to prohibit slavery in [the 
Territories. The Douglas Democrats simply re- 
fused to admit the conclusion, although they as- 
serted the premises of the Dred Scott decision, 
said that it was just and final, and that they would 
abide by it. The Doiiglas platform was adopted, and 
many of the Southern delegations then withdrew. 
The Democratic convention, after the withdrawal of 
the delegations, nominated Stephen A. Douglas for 
President and H. Y. Johnson for Yice-President. 
The seceding delegates nominated J. 0. Brecken- 
ridge, of Kentticky, and Joseph Lane, of Oregon. 
A Constitutional Union party — a new name for the 
former American party — nominated John Bell and 
Edward Everett. At the election in November 
every Northern State, with the exception of New 
Jersey, elected Republican electors, and thus se- 
cured the election of Lincoln as President of the 
United States upon a platform declaring that free- 
dom was the normal condition of the Territories, 
which Congress was bound to preserve and defend. 
Immediately after the election of Lincoln was placed 
beyond doubt, the South Carolina Legislature, in 
1860, called a State Convention, which passed almost 



194 COITSTITUTIOIS^AL HISTOEY. 

unanimously an ordinance of secession, and ap- 
pointed commissioners to treat with the other slave 
States for a withdrawal from the Union, and to 
treat with the United States Government for a di- 
vision of the national property and of the public 
debt. By the end of February, 1861, Florida, Mis- 
sissippi, Louisiana and Texas, as well as Georgia 
and Alabama, had likewise passed ordinances of 
secession. Tennessee, North Carolina, Arkansas, 
Kentucky and Missouri were still wavering and 
awaiting the current of events. President Buchanan, 
when Congress met, detailed the condition of affairs 
in the South, denied the right of secession, but ex- 
pressed himself as powerless to prevent the pas- 
sage of the resolutions, and intimated doubts as to 
the power of Congress to make war upon the States. 
The session was mainly occupied with attempts at 
compromise. The Crittenden Compromise was 
one which was most before Congress, and had the 
greatest chance of success. The main provisions of 
the bill were that slavery should be prohibited 
north of parallel 36° 30', recognized and never in- 
terfered with by Congress south of that line, and 
that the Federal Government should pay for all 
slaves rescued from officers after arrest. These 
provisions were intended to be made part of the 
Constitution of the United States, and were never 



THE POST-COIS'STITUTIOIS'AL HISTOEY. 195 

to be altered or amended by the Union as it exist- 
ed. The Republicans in Congress refused to vote 
for this measure, and the Southern members there- 
fore refused to entertain it. In February, 1861, a 
Peace Congress was convened at the request of the 
Yirginia Legislature, and met at Washington. It 
adopted and reported a number of resolutions for 
congressional action, all of which were refused to 
be entertained by Congress. An amendment to the 
Constitution, however, was recommended by Con- 
gress, which forbade Congress ever to interfere with 
slavery in the States. Meanwhile a convention of 
delegates from the seceding States was called, which 
met at Montgomery, and organized the Government 
which w^as known during the war as the Confeder- 
ate States of America. It in many respects copied 
the Constitution of the United States ; it in words 
recognized slavery; it extended the term of the 
President's office ; it prohibited tariffs for any pur- 
poses other than revenue. Jefferson Davis and 
Alexander H. Stephens were chosen President and 
Yice-President. A Cabinet was appointed. Depart- 
ments were organized, and immediate preparation 
was made to carry on war. 

As a sufficient number of Southern delegates had 
now withdrawn to give to the Eepublicans an un- 
doubted majority in both " Houses of Congress, 



196 CONSTITUTIONAL HISTOEY. 

Kansas was admitted immediately with a free Con- 
stitution ; Nevada, Colorado, and Dakotah were 
organized as Territories, a new tariff law was 
passed, mainly in the interest of the Eastern States 
and Pennsylvania, as the opposition of the free- 
trade Southern members being withdrawn, all 
organized opposition to a protective tariff was for 
the time being at an end. 

This brinscs us to the era of the administration 
of Mr. Lincoln and the breaking out of the war. 
President Lincoln was inaugurated on the 4th of 
March, 1861. His inaugural message expressed a 
determination to relieve Fort Sumter, and as- 
serted in unambiguous terms the right of the Union 
to prevent its own destruction. The attempt to 
resupply Fort Sumter in Charleston harbor pre- 
cipitated an attack on April 13th, 1861, by South 
Carolina, which inaugurated the Civil "War. Fort 
Sumter surrendered on the 14th of April, and on 
the 15th the President issued his first call for 
troops, which was immediately responded to by 
the Northern States. An insignificant remnant 
of the Democratic party remained true after hos- 
tilities actually began to the idea that secession 
was a constitutional right, and that there was no 
power in the United States Government to coerce 
a State. Within a fortnight after the breaking out 



THE POST-CONSTITUTIOT^AL HISTOET. 197 

of the war, Yirginia, North Carolina, Tennessee and 
Arkansas threw in their fortunes with the South ; 
Delaware, Maryland, Kentucky and Missouri, re- 
mained, with small majorities, loyal to the Union. 

Early during the war the question of the status 
of the slave became a very important one. Gen. 
Fremont, having control of the Missouri depart- 
ment, proposed to free the slaves of Missouri ; but 
his order to that effect was overruled by the Presi- 
dent. Gen. Butler was more successful by a happy 
euphemism in declaring the slaves to be contraband 
of war, wherein he had the support of the Secre- 
tary of War. 

In September, 1862, President Lincoln issued a 
proclamation that in the event of the rebels re- 
fusing to return to their allegiance by the 1st of 
January, 1863, he would then issue an emancipa- 
tion proclamation. Accordingly, on the 1st of Jan- 
uary, 1863, during a period of extreme depression 
and doubt as to the ultimate success of the Union 
arms in suppressing the rebellion, the Federal 
armies having met in 1862 with many serious re- 
verses, the proclamation was issued by which the 
slaves in the States then in rebellion were declared 
to be free. The slaves held in States not in re- 
bellion were not affected by this proclamation, an 
amendment to the Constitution being necessary to 



198 CONSTITUTIOlSrAL HISTOEY. 

accomplish that result as to the " property " of loyal 
citizens in those States. The emancipation proc- 
lamation, after declaring the districts within which 
it was to be operative, was couched in a spirit of 
humanity to prevent an insurrection of slaves by 
enjoining them " to abstain from all violence, un- 
less in necessary self-defence," and promised them 
that " such as were fitted would be taken into the 
armed service of the United States, to garrison 
forts, stations, and other places, and to man vessels 
of all sorts in said service." 

The difficulty in creating the necessary loans, in 
the early period of the war, and a fear to dampen 
the ardor of the North by burdensome taxation, 
caused the passage of a Legal Tender bill, by which 
the currency of the United States had an enforced 
circulation — a measure of doubtful constitution- 
ality, but which, as the Supreme Court of the 
United States subsequently declared, was a justifi- 
able exercise of the war power. A national banking 
system was created, by which the banks were re- 
quired to invest their capital representing circula- 
tion in United States loans, so that a large amount 
of the United States Government bonds was com- 
pulsorily absorbed in that manner. 

During the four years that the war lasted, two 
States were admitted into the Union : "West Virginia, 



THE POST-COj^STITUTIOIS'AL HISTORY. 199 

carved out of Yirginia proper, and Nevada. In 
1864 the Fugitive Slave law was repealed. At- 
tempts were made in February, 1865, by the Presi- 
dent to make peace with the Southern States on 
the condition of their return to the Union. A1-' 
though no authorized version of the negotiations 
has ever been given -to the public, it was conceded 
that with the single exception of consent to the 
abolition of slavery, and submission to the author- 
ity of the Union on the part of the South, every 
condition that the Southern States could ask would 
be submitted to by the North, including the 
adoption of the Southern debt and the reimburse- 
ment to the Southern slaveholder for slaves lost. 
But the Southern leaders madly rejected this 
proposition. 

The war at that time, in consequence of Sherman's 
march through the Southern States, and the pres- 
sure upon Gen. Lee's army exercised by Gen. 
Grant's forces, was rapidly drawing to a close in 
favor of the Union. 

Lincoln was in 1864 reelected President of the 
United States, and inaugurated on the 4th of 
March, 1865. 

In April, 1865, the surrender of General Lee, 
followed quickly by the surrender of General John- 
son, practically ended the war. On April 14 Pre si- 



200 COIS^STITUTIONAL HISTOEY. 

dent Lincoln was assassinated at a theatre in 
Washington, and Andrew Johnson, who had been 
elected as Yice-President, became, on the 15th of 
April, the President of the United States. This 
unfortunate assassination of a President in whose 
wisdom and moderation the people of the United 
States had very great confidence, added materially 
to the difficulty of dealing with the Southern States 
then lately in rebellion. To admit them as States in 
the full possession of their sovereignty, with the 
negroes disfranchised, although liberated, was to 
place the negro once more in the power of his 
former owner, and therefore to some degree a 
violation of the implied pledge given by the United 
States to the negro race, both by the emancipation 
proclamation and by the use of thousands of able- 
bodied negroes in the army and navy, that the 
promise of freedom should be followed by protect- 
ing them from oppression thereafter. In any event, 
the Government was called upon to exercise 
a guardianship to prevent their reenslavement 
or such deprivation of social rights as would 
amount to a perpetual condition of servitude of the 
race. On the other hand, the United States Con- 
stitution had made no provision for the condition 
of affairs which the war had brought about. To 
extend the right of suffrage at once, without a 



THE POST-CONSTITUTIONAL HISTORY, 201 

period of education intervening, to the lowest type 
of a laboring population, made by the system of 
slavery an entirely irresponsible class of human 
beings, was full of danger to all vested property 
interests and to civilization itself in the States 
where they preponderated. The right of suffrage 
was always regulated by the States themselves ; the 
States, as sovereigns, had a right to the organization 
of their own governmental functions without inter- 
ference by the federal power except that general 
provision which made it the duty of the national 
Government to see to it that the form of government 
adopted by the States was republican in character. 
For the purpose of exercising a guardianship over 
the negroes, and to prevent their being unjustly or 
harshly dealt with by the Southerners who were 
formerly slaveholders, the Freedmen's Bureau was 
organized immediately after the close of the war, 
with agents in every Southern State, for the pur- 
pose, of adjudicating upon the rights of the negroes 
and to prevent their being wronged. 

President Johnson, who had expended his adult 
life in a slave State, and who was a strict construc- 
tionist of the Constitution, refused to recognize the 
methods of reconstruction which Congress saw fit 
to adopt; he appointed provisional Governors for 

the States lately in rebellion, and declared his pur- 
9* 



202 COnS-STITUTIONAL HISTOET. 

pose that their terms of office should endure only 
until a permanent government could be organized. 
The passage of the Freedmen's Bureau bill, which 
was vetoed by the President, and of the Civil Kights 
bill, which was also vetoed, but both of which, 
nevertheless, being enacted by a congressional 
overriding of the vetoes, created an antagonism be- 
tween the Republican majority in the legislative 
body and the President, which soon ripened into an 
open rupture. 

The fourteenth amendment was adopted by both 
houses in June, 1865. The Civil Rights bill de- 
clared freedmen citizens of the United States. The 
reasons against this declaration were sound in 
themselves, because it admitted to the rights of 
citizenship a large number of persons whose prior 
condition of servitude and enforced labor made 
them extremely dangerous citizens. As the right 
to vote implies not only the right of the voter to 
protect himself against the aggression of others, 
but also involves the power, through the instru- 
mentality of taxation, which is placed in the official 
hands created by the voters, to confiscate the prop- 
erty of others, it was apprehended by many that 
•demagogues and adventurers would win the free- 
men by illusory promises of personal benefits to 
give them their votes, and that, by the creation of 



THE POST-CONSTITUTIO]S^AL HISTOEY. 203 

public debts and the exercise of the power of tax- 
ation, they would mercilessly confiscate the prop- 
erty of citizens subjected to their sway. 

Another Freedmen's Bureau bill passed both 
h-ouses in the summer of 1866. This was also 
yetoed by the President, but finally passed over the 
veto and became a law. When Congress met in 
December, 1866, the conflict between the Legislative 
department of the Government and the Executive 
became so acrimonious, measures passed by Con- 
gress were so constantly vetoed by the President, 
that a determination was formed on the ]3art of 
Congress to remove the President by impeachment. 

In January, 1867, a bill was passed which took 
from the President the power to proclaim a general 
amnesty. The Army appropriation bill contained a 
provision by which the President was virtually 
divested of his command of the army, by making it 
imperative that all his orders should be given to 
the General of the army who could not be removed 
without the previous approval of the Senate. The 
General of the army at that time vf as General Grant, 
who was relied upon as antagonistic to President 
Johnson and loyal to Congress. 

Nebraska was admitted that year as a State. A 
new bill was passed to provide governments for the 
States which lately had been in insurrection. The 



204 CONSTITUTIOI^AL HISTOEY. 

States were divided into military districts, each 
under the government of a General. This military 
government was to continue until a State Conven- 
tion chosen by all those who had previously been 
declared by Congress to be citizens, and therefore 
negroes included, should form a State government, 
and ratify the fourteenth amendment. The ratifi- 
cation, therefore, of the fourteenth amendment was 
a compulsory process, and can scarcely be deemed 
the voluntary act of the States which had previously 
been in rebellion. 

The Tenure of Office bill was passed over the 
President's veto, taking from the President the 
power of removal without the consent of the Senate. 
This bill declared it to be a high misdemeanor to 
make any such removal except with the consent of 
the Senate. 

During the summer following this Congress, 
Edwin H. Stanton, who had been Secretary of War, 
was asked by the President to resign. Stanton 
refused to resign. He was thereupon suspended 
under the provisions of the Tenure of Office bill, and 
Gen. Grant was appointed Secretary of War ad 
interim. On the 14th of January, 1863, the Senate 
refused to agree to Stanton's removal. Gen. Grant 
vacated the office, and Stanton was reinstated. The 
President thereupon again removed Stanton and 



THE POST-CONSTITUTIOXAL HISTORY. 205 

appointed Gen. Thomas in his place. Thomas 
accepted, but Stanton refused to quit. Both the 
Senate and House being in session, and the Pres- 
ident having clearly violated the provisions of the 
Tenure of Office bill, the House resolved to impeach 
him before the Senate, and on the 5th of March the 
trial of the impeachment was begun. This was the 
first and only impeachment of a President of the 
United States under the power granted by the Con- 
stitution. In the Senate the vote stood 35 for con- 
viction and 19 for acquittal. The requisite two- 
thirds majority, therefore, not having been obtained, 
a verdict for acquittal was entered, and the im- 
peachment trial fell through. 

The political contest for the Presidency turned 
mainly upon the reconstruction legislation. Grant 
and Colfax were nominated by the Republicans in 
1868 ; Seymour and Blair by the Democrats. The 
election resulted overwhelmingly in favor of the 
Republican party. On the 20th of February fol- 
lowing the fifteenth amendment to the Constitution, 
guaranteeing the right of suffrage without regard 
to race, color, or previous condition of servitude, 
was adopted by Congress. On the following 4th 
of March Grant and Colfax were sworn into office. 

During President Grant's first term of office the 
reconstruction of the Southern States proceeded 



206 CONSTITUTIOIS^AL HISTOEY. 

rapidly under tlie plan laid down by Congress. The 
greatest part of the time of Congress was taken up 
in legislation to secure to the negroes their rights, 
armed conflicts having taken place at various parts 
of the Southern States between negroes and whites, 
arising from the enforced equality of the former 
and the inveterate prejudices of the latter against 
their recognition as citizens, and to the un- 
fortunate selections of Governors and legis- 
lators in the reconstructed States, by which men 
known as " carpet-baggers," adventurers from the 
Northern States, who went to the South for the pur- 
pose of securing office, and in the troubled condition 
of affairs foisted themselves into positions of import- 
ance and trust, which they vilely and outrageously 
abused. As under the amendments to the Constitu- 
tion the debts of the States in rebellion incurred for 
the purposes of the war, and the whole of the Con- 
federate national debt were irrevocably repudiated 
and extinguished, the States were at the time of the 
reorganization free from all debts, except such as had 
been created anterior to the rebellion. This offered 
for the creation of new public debts a great quarry 
for plunder to the legislative and executive officers 
who had, during this period, become possessed of 
political power ; and debts were created in a most 
reckless manner; bonds were issued amounting to 



THE POST-COlvrSTITUTIOlSrAL HISTOET. 207 

many millions of dollars, for which the States never 
received any return, and the proceeds of which 
were in the main embezzled and wasted. This 
condition of affairs created, to a very considerable 
degree, a righteous indignation on the part of the 
Southern propertied classes, as these Governors 
and legislators not only rested their tenure to offices 
upon the votes of the most ignorant and depraved 
part of the population of the Southern States, but 
also had at their beck and call the army of the 
United States to enforce obedience as against citi- 
zens who had a stake in the community, and who 
were compelled quietly to submit to seeing part of 
their property confiscated by the taxing power, and 
the remainder mortgaged, by the debt creating 
power. 

The Alabama settlement with England was the 
most important step of the Grant administration as 
to foreign policy. 

The incidents connected with Gen. Grant's first 
administration, of corruption on the part of the 
office-holders in the Southern States, and the class 
of people to whom he gave his confidence in the 
Northern States, created considerable reaction 
against the plan of Congressional reconstruction 
as practically carried out, and divided the Be- 
publican party into two divisions. Horace Gree- 



208 COlSrSTITUTIOiq-AL HISTOEY. 

ley, tlie editor of the Tribune, was at the head of 
the wing against the administration party, and Gen. 
Grant remained the representative of the bulk of 
the Eepnblican party. In 1872 the Republican 
party renominated Grant for President, and 
Wilson for "Vice-President; and the Liberal 
Eepublicans nominated Horace Greeley, of New 
York, for President, and B. Gratz Brown, of 
Missouri, for Yice-President. The Democratic 
party, at a subsequent convention, adopted the 
Liberal Republican candidates ; but the election 
resulted overwhelmingly in favor of the Republic- 
ans, and President Grant's second term of office 
began. 

One of the instruments of oppression that had 
been devised with much ingenuity for the pur- 
pose of perpetuating the power of the adven- 
turers who succeeded in obtaining control of the 
Government in the Southern States was what was 
called a Returning Board, a commission which 
was originally appointed by the Governors of the 
States with or without the consent of the Lesjisla- 
tive department, which had the power to perpetuate 
its own existence by filling by cooptation vacancies 
in its own board, and which had the power to re- 
ject the votes of whole districts where, according 
to the finding of the commission, intimidation had 



THE POST-COI^STITUTIOlSrAL HISTORY. 209 

been exercised. This power substantially gave to 
these Returning Boards the determination of an 
election ; however large the majority adverse to 
their party might prove to be in certain districts, 
it could be wholly rejected on the mere ground of 
intimidation, of which they themselves were to be 
the judges, and so change the result. 

During Gen. Grant's second term of office, the 
question of the resumption of specie payments and 
the payment of the national debt in gold became 
the source of most of the conflicts in Congress. 
The veto by Gen. Grant of a currency bill by which 
an attempt was made on the part of a majority in 
Congress to increase the irredeemable currency of 
the United States, was the first favorable sign of re- 
turning financial reason, and gave a strong impetus to 
a regression to a sound basis for the national currency 
by its eventual redemption in coin, and of a full and 
complete recognition, not in words only, of the rights 
of the public creditor to payment in specie. During 
the war the currency of the United States fell, as 
calculated in specie, to about thirty-six cents on the 
dollar — gold stood at one time at 270. At the time 
of the suppression of the rebellion the premium on 
gold had fallen to below 30. As the rise in values 
of land counted in currency created a fictitious 
prosperity which was interfered with by the fall in 



210 COI^STITUTIONAL HISTOEY. 

prices consequent upon a return of the currency to 
its specie value, vast numbers of people through- 
out the United States, and more especially in the 
Western States, were led to the conviction that the 
source of their prosperity was the issue of irredeem- 
able currency, and that no greater mischief could 
be done to the permanent prosperity of the nation 
than a return to specie payments, or the payment of 
the Government creditor in coin. This financial 
and politico-economical error so pervaded the com- 
munity that it was for a considerable period of time 
questionable whether within any reasonable period 
the United States Government could return to a 
sound financial basis ; and it was only through 
the persistent and, in many respects, the self-sacri- 
ficing efforts of men scientifically educated in po- 
litical economy that State after State wherein party 
lines were drawn on this question were brought 
back to take a more rational view of governmental 
finance, and to acquiesce in the slight individual 
inconveniences which a return to specie payments 
would entail. 

The crisis of 1873, followed by a period of extreme 
depression of values in 1874, 1875, 1876, added very 
considerably to the so-called Greenback or Non-re- 
demptionist force, and was an additional cause in 
delaying a return to specie payments. Congress had 



THE POST-COKSTITUTIO]^AL HISTOEY. 211 

declared in 1875 that on the 1st of January, 1879, 
the resumption of specie payments should take 
place. Notwithstanding the opposition to this plan 
of resumption, it went successfully into operation on 
the 1st of January, 1879. This happy result was 
aided by fortune more than by the wisdom of the 
politicians, the country having in 1877 experienced, 
by reason of an extraordinarily good, crop and a fail- 
ure of the European crop, a revival of industry, 
followed in 1878 by a further increase of national 
wealth by another extraordinarily good crop and an- 
other failure of crops in Europe. These two events 
turned the tide of goldin'the direction of the United 
States, producing the double effect of both increas- 
ing the facilities of the United States Government 
to resume, and greatly reducing the ranks of the 
adversaries to resumption which had been largely 
strengthened by the depression resulting from the 
crisis of 1873. 

In 1876 the Democrats nominated Samuel J. 
Tilden, of New York, and the Eepublicans Euther- 
ford B. Hayes, of Ohio, for the office of President 
of the United States.. The election of 1876— Colo- 
rado and Nebraska having in the interim become 
States in the Union — required for a choice 185 
electoral votes. Mr. Tilden had 184 unquestioned 
electoral votes. Mr. Hayes had 165 unquestioned 



212 COTTSTITUTIOT^AL HISTOEY. 

electoral votes. Thus Mr. Tilden required but one 
vote to constitute liim President, and Mr. Hayes 
twenty. The votes that were questioned were one 
from Oregon, the Governor of which certified to 
one Democratic and two Republican electors 
arising from a disqualification on the part of one of 
the electors, although unquestionably the disquali- 
fied elector had been elected; seven from South 
Carolina, as to the vote of which there was at first 
a very considerable amount of doubt, and was made 
the subject matter of litigation within the State, 
the vote, however, was certified for the Republican 
electors ; four from Florida, and eight from Louis- 
iana. The popular majority in Louisiana and 
Florida was undoubtedly in favor of the Demo- 
cratic electors. It was only through the instru- 
mentality of the machinery known as the Return- 
ing Board that the vote could be changed into a 
Republican legal majority. The Returning Board 
of Louisiana was composed of men whose former 
action had already been discredited by a Republi- 
can Congress under an investigation carried on by 
a Republican committee. The electoral vote of 
Florida was declared by the State authorities them- 
selves to have been illegally cast for the Repub- 
licans, and the State, by the only means in its 
power, deliberately recalled the vote of the State 



THE post-co:n'stitutioi^al histoey. 213 

before the vote was counted, and also duly com- 
missioned Democratic electors, whose votes were 
cast in favor of Mr. Tilden. 

In Louisiana the manipulations of the Returning 
Board forms one of the most humiliating chapters of 
fraud in American politics ; the certification in favor 
of the Louisiana Republican electors, though regular 
in form, was created by an instrumentality which, 
if generally adopted throughout the United States, 
would make a farce of popular elections. Although 
these manipulations of results gave a colorable 
right, before the vote was declared, to Mr. Hayes as 
the elected President of the United States, yet Mr. 
Tilden, who had unquestionably received by far the 
greater popular vote, would, in the absence of any 
Returning Board machinery, have undoubtedly been 
declared the President of the United States. In 
this situation, both parties claiming the Presidency, 
it was apprehended that another civil war might re- 
sult if no means were found by which this condition 
of affairs, unprovided for by the Constitution, could 
be temporarily dealt with. The Constitution gives 
to the President of the Senate the right to receive the 
electoral votes and to open them, and that then they 
shall be counted in the presence of the Senate and 
House. Prior legislation had formulated the manner 
in which this proceeding should be conducted. The 



214 COITSTITUTIOI^AL HISTOEY. 

House was Democratic, the Senate was Republi- 
can. The House, therefore, would inevitably refuse 
to count the Presidential yotes in the manner in 
which the Senate would count them, would reject 
the Republican yotes of Louisiana and Florida, and 
the one vote from Oregon, and would either declare 
Mr. Tilden elected President of the United States 
by counting the rival certificates from such States, 
or declare that no election had taken place and 
proceed to elect under its constitutional right, which 
would have resulted in Mr. Tilden's election. At this 
juncture of affairs a compromise was made between 
the parties by the passage of what is known as the 
Electoral Commission act, by which five Senators, 
five Representatives, and five Justices of the Su- 
preme Court of the United States were constituted a 
court to whom all the votes upon which the two 
houses could not agree were to be referred, the de- 
cision of which was to be final, unless overruled by 
both hous3S. This commission stood in all its deter- 
minations eight to seven, there being eight Repub- 
licans and seven Democrats, and thus counted in 
Hayes and Wheeler as President and Yice-Presi- 
dent of the United States by determining all the 
disputed questions in favor of the Republican party. 
The attitude of both political parties during this 
contest must have appeared to the cynical observer 



THE POST-COJiTSTITUTIOjN'AL HISTORY. 215 

as a strange exliibition of the slight hold that prin- 
ciples have upon political parties under the pressure 
of personal ambition and party dictation. The Ee- 
publican party was compelled, from the necessity of 
the situation during the war, to construe the Consti- 
tution in the most liberal spirit and in the loosest 
possible way to meet the stretches of power neces- 
sary to bring the States in rebellion, by means 
of an armed force, back to the Union ; to deny the 
rights of States against the rights of the United 
States, and to limit the State power to the narrow- 
est compass. The Democratic party, on the other 
hand, was, from its position on the^ slavery question 
before the war, from its position of quiet antagonism 
during the war, its position in opposition to the re- 
construction legislation of the United States Gov- 
ernment during Republican administration subse- 
quent to the war, driven to take a position as al- 
vocate of extreme State rights doctrines. In the 
contest, however, before the Electoral Commission 
the parties suddenly changed positions on what was 
supposed to be an ingrained difference of party 
policy between them. The Republicans became 
the most strict constructionists of the Constitution 
as to State rights. They claimed that the official 
return of a sovereignty of the magnitude of a State, 
however brought about, could not be inquired into 



216 CONSTITUTIONAL HISTOEY. 

bj the limited and circumscribed sovereignty of the 
United States Government; and even when the 
State of Florida solemnly protested that its return 
had been fraudulently obtained, the members of 
that party declined to review the decision of the 
State when it once had been solemnly asserted. 
The Democrats, on the other hand, claimed the 
right, on the part of the Government of the United 
States, upon so vital a question as the election of a 
President of the United States, to inquire how the 
State's return was made up, and to take cognizance 
of frauds which were practiced in the election, which 
substantially nullified and vitiated the State's action, 
and to reform such if it be in conformity with justice. 

The decision of the Electoral Commission was 
generally acquiesced in for the sake of peace. The 
compromise was deemed final, and President Hayes 
and Vice-President Wheeler were duly inaugurated 
President and Yice-President of the United States. 

The Hayes administration fell within a period of 
political tranquillity, and it was also distinguished 
by the high personal character of the Cabinet ap- 
pointments. It received very general support, and 
that administration very largely reaped the advan- 
tage arising from an era of unexampled and 
unparalleled prosperity on which the United 
States then entered by reason of the extraor- 



THE POST-CONSTITUTIONAL HISTOKY. 217 

dinary deyelopments of the Northwest and of the 
mining regions of Colorado, Arizona, Nevada, Utah 
and Wyoming. During this administration there 
was an immense increase of exports, in part caused 
by the failure of the crops in Europe and by the 
developments which had been made in the railways 
of the country in increasing the facilities and cheap- 
ening the cost of transportation. Resumption was 
accomplished, and although Congress framed some 
injudicious legislation in favor of the remon- 
etization of silver at a rate below its market 
value, as a sop to the heresies of Greenbackers, 
yet on the whole the administration of Mr. Hayes 
and the congressional legislation of that period 
produced an advancement of the public credit, a 
decrease of public burdens, and set a term to, 
and ended the wasteful, wicked, and corrupt ad- 
ministration of the Southern States by the carpet- 
bag governments. 

The election of 1880, wherein the standard-bearer 
of the Democratic party was Gen. Hancock, and of 
the Republican party Gen. Garfield, resulted in the 
elevation of Gen. Garfield to the Presidential chair, 
by the determining vote of the State of New York. 
The platform of the Republican party in 1880 com- 
mitted that party to the protective tariff which from 

1860 on, was the continuous fiscal policy of the 
10 



218 coitstitutiojS-al history. 

United States Goyernment. The Democratic party, 
on the other hand, had adopted a plank in favor of a 
tariff for revenue only. The chances of the cam- 
paign were decidedly in favor of the Democratic 
party. The suspicion that a wrong had been done in 
the elevation of President Hayes, still lingered in 
the minds of the people sufficiently to lead many 
republicans to desire a rectification of that wrong, 
by the election of a Democratic President in 
1880. Late in the campaign, the Republicans 
issued a series of violently aggressive attacks on 
the free-trade plank of the Democratic party, by 
which it was attempted to be shown that the 
prosperity of the United States v^as largely due 
to the protective policy ; that the manufacturing 
industries would be utterly crushed in the event of 
the Democrats prevailing, and that the laborer 
would be deprived of his hire and his family of 
bread, if the free-trade policy were to be inaugu- 
rated as against the protective policy which it was 
claimed had produced within the twenty years then 
last past such wonderful results in developing the 
prosperity of the nation. The Democratic party, 
instead of boldly combatting these utterly unfounded 
assertions, had become demoralized by the twenty 
years' exclusion from power, and was so false to 
principles, and so anxious to succeed that the 



THE POST-CONSTITUTION^AL HISTORY. 219 

sacrifice of all the ballast in the way of principle 
it still had in the hold of its ship, was determined 
upon bj its then leaders. This caused its standard- 
bearer to issue a letter at a moment of panic saying 
that he was personally in favor of protection, what- 
ever the platform might say, and caused the Demo- 
cratic speakers to hasten to explain away what they 
supposed to be a damaging element of their platform, 
though the real element of their strength^ — the rev- 
enue reform plank — and to outbid the Republicans 
for support as a protectionist party. This ruse lost 
them votes from Republican fi^ee-traders, who were 
willing to vote for the Democratic ticket, and gained 
them no adherence from the Republican ranks. A 
vulgar forgery of a letter was issued by the party 
against Garfield, attempting to commit him to a 
policy favoring Chinese emigration. To add to the 
Democratic calamity, the Democratic party had 
allowed its organization in the city of ISTew York, 
where its strength was greatest, to fall into the 
hands of " bosses " and juntas of politicians who 
were at all times willing to sacrifice for the sure 
gains of the local offices the larger and more prob- 
lematical results of a national victory, and as the 
State and Municipal elections are held simultane- 
ously with the national election in the State of New 
York, a small change of votes caused by these 



220 COITSTITUTIONAL HISTOKY. 

sinister and personal interests, was sufficient to 
give bj a small majority tlie thirty-five electoral 
votes of the State of New York to tlie Republic- 
ans instead of to the Democrats, for whom in the 
computations theretofore made it had generally 
been counted. The result was the election of Mr. 
Garfield as President of the United States, whose 
term of office, beginning on the 4th of March, 1881, 
came to a sudden termination at the hands of a 
malignant assassin, on the 19th day of September, 
1881. Thereupon Chester A. Arthur, who had 
been elected Yice-President upon the same ticket 
with Mr. Garfield, became the President of the 
United States. 

"With the settlement of the slavery question, re- 
construction, and return to specie payments, the 
Republican party finished its work. It lives now 
on the record of its past history. The Democratic 
party, except as to the free-trade principle, to which 
it can scarcely be said to be faithful, has now no 
distinctive principle from the Republican party. It 
still insists in its platforms upon State rights, but 
as such rights are not really assailed, it can scarcely 
be deemed a vital question in American politics. 
Indeed the caucus system, thirst for office and 
popularity, have so demoralized both great politi- 
cal parties, that their dissolution is a mere ques- 



THE POST-COl^STITUTIO^AL HISTORY. 221 

tion of time. Upon causes deeper tlian any which 
the present leaders of these parties are likely to 
forecast or anticipate, will depend the reorganiza- 
tion of American political parties, upon political 
issues of the future involving principles asserted 
on the one side, and denied by the other. 



CHAPTEE YI. 

CURRENT QUESTIONS PRODUCTIVE OF CHANGES IN THE 

CONSTITUTION. 

It is, of course, impossible to foretell witli accuracy 
the clianges the womb of time may bring forth, which 
will modify and affect the organic law of the United 
States. Whatever development the United States, 
in the near future, will experience will necessarily 
come from within and not from outward pressure. 
Unlike the nations of Europe, the United States 
has no neighbor sufficiently powerful to affect its 
policy or to modify its constitution. It requires 
no standing army ; and so long as England performs 
the police duties of the seas, it requires but little 
of a navy. It has no occasion to fear any serious 
foreign intervention, and it is therefore left freer 
than any other nation within the period of modern 
civilization to pursue its own development. In that 
respect its position is sui generis ; nothing resemb- 
ling it as a national power has ever j^ppeared on the 
face of the earth, except the condition of savage 



CUEEEIs^T QUESTIONS. 223 

tribes and insular nations, not brought within the 
influence of civilization, as to the severance of po- 
litical interests from that of all other peoples. The 
good that is within it can, therefore, come to its 
ripest development : the evil that it contains will 
bring its direst sinister consequences. The influence 
of foreign nations upon it are entirely of an indus- 
trial, intellectual, and commercial character. 

A combination of circumstances beginning with 
the war of 1861, intensified by the extension of 
the means of intercommunication between the 
States by the railway and the telegraph, in con- 
junction with the natural and artificial v/aterways 
of the country, have made of the United States a 
solidified nation, within the generation last past, 
to an extent that was not anticipated by its found- 
ers, a consolidation much more complete than 
the theory of American institutions would seem 
to justify. State lines exist and will continue to 
exist for all purposes of penal and municipal 
law, except in so far as they may, as already 
shown in these pages, be overridden by the para- 
mount law of the Union. Yet the traveler who 
starts in a railway train at Boston and remains in 
the same palace car until he arrives at San Fran- 
cisco, travels through twelves States and Territo- 
ries without noticing any State line, and rapidly 



224 COI^STITUTIOIN^AL HISTOEY. 

comes to regard the whole domain as his one 
country. The tendency of the times is necessarily 
to weaken the power of the State on the alle- 
giance of the individual, and lead to a greater and 
greater consolidation and unity of interest of the 
whole United States. This tendency is still further 
accelerated by the inability on the part of the 
individual States to deal with the economic and 
social questions which necessarily arise from the ex- 
tension of the means of intercommunication between 
the States, and the necessity for the existence of a 
general power to deal with them. Already the States 
have felt and have, to a considerable degree, ac- 
knowledged their inability to deal with the rail- 
way and the telegraph question. The decisions of 
the Supreme Court in recent years, recognizing the 
inability on the part of the States to deal with these 
questions, have considerably extended the jurisdic- 
tion of their court over transportation routes lying 
partly within one State and partly within another, 
or upon a river running into two or more States. In 
the so-called Granger cases the Supreme Court has 
asserted jurisdiction in cases of all inter-State com- 
merce in which goods or passengers are taken from 
one State beyond its own borders within the domain 
of another. This tendency will continue to consoli- 
date the power of the United States upon all indus- 



CUEEENT QUESTIONS. 225 

trial and commercial matters as to wliicli the States 
have a common interest, and for the purpose of put- 
ting that question at rest so that the United States 
may deal with that subject precisely as it deals with 
the subject of bankruptcy, a constitutional amend- 
ment will, in all probability, be proposed and acted 
upon, granting to the United States Government in 
express terms that which it already claims to have 
by implication, so that it may deal fearlessly and 
effectively with the important problems that arise 
from the organization of great monopoly interests 
which are incident to modern methods of the trans- 
portation of goods and passengers. 

With the exception of the Pacific railways, all 
the railway corporations of the United States were 
chartered by the States, and though many of them 
have thousands of miles of line traversing many 
States, they claim their powers under the separate 
charters of the different States through which the 
lines run, and are in theory only amenable to the 
States covered by their lines of rails. Inequalities 
of rates, however, creating unjust discriminations 
between individuals of different States, and exer- 
cising a function analogous to that of taxing arbi- 
trarily and without control, has and does create a 
power within the nation so great that it threatens 
sooner or later to dispute the fact with the 
10* 



226 COI^STITUTIOITAL HISTOEY. 

authorities of the United States as to whether the 
railway or the governmental power is the greater. 
The State political machinery has to a very con- 
siderable degree already succumbed to the exercise 
of this power, and therefore to make head against it 
it will be found necessary to clothe the general 
Government with sufficient attributes of sovereignty 
to deal with the subject adequately. 

That this necessity runs counter to a very cor- 
rect theory of decentralization, and that the liberty 
of the individual is endangered by all centraliza- 
tion of power, is a truth to which thoughtful 
students of political history cannot shut their eyes. 
But precisely as in Germany a false decentraliza- 
tion of power had to be succeeded by a nation hav- 
ing centralized national power, with the view to in- 
telligent and proper decentralization ; so in time it 
may be necessary in many particulars to disregard 
State lines and the localizing of power resulting 
from such Stats lines, for the purpose of more in- 
telligent and more effectual decentralization in those 
particulars wherein it is beneficial, and also to se- 
cure centralization in those matters wherein decen- 
tralization involves danger to the commonwealth. 

The development of the taxing power arising 
from the war quadrupling the number of office- 
holders in the United States within the period from 



CLTRFwE^^T QUESTIONS. 227 



1860 to 1870, and increasing as it did the ordinary 
expenditures of tlie United States Government, in- 
dependently of interest on the public debt from 
$60,000,000 in 1860 to $220,000,000 in 1867, has in 
itself aggravated certain evils which only were easy 
to be borne at a period of time when the United 
States had a debt of $64,000,000, representing per 
capita $1.91 in 1860, instead of a debt of $3,000,- 
000,000 in 1865, with a per capita charge of $78.25. 
From the time of Jackson's administration ap- 
pointments went by favor, not by merit, and that 
which was favor originally, degenerated into a claim 
of right dependent upon political activity in favor 
of the successful candidate. Appointments were 
made to high offices not because A. B. was specially 
qualified for the office, but because A. B. was a 
skillful or efficient worker in the campaign which 
preceded the successful election of the incumbent* 
This system not only fills the public offices of the 
United States with inefficient and corrupt officials 
in high station, and keeps out of political life the 
capable men, who are disinclined to perform party 
work as a condition precedent to accession to office, 
but it also created the same system under those 
officials as to all their subordinates ; and as from the 
Presidential office down to the lowest political 
official tenure of office depended upon the con- 



328 COl^STITUTIO^AL HISTOEY. 

tinuation of tlie administration, at every recur- 
ring election tliese officials strove by personal 
activity at the polls, and in the organization of the 
machinery of elections and nominations, to con- 
tinue in power the political party to which they 
belong, so as to preserve their personal incumbency 
of the office, and they were to a very large degree, 
and still are, regularly assessed to pay the political 
expenses of a campaign. Millions of dollars are 
thus raised from office-holders in the United States 
at every recurring Presidential election, or even 
local elections, in the interim, which may have a re- 
mote effect upon the Presidential elections, to pay 
the expenses of campaigns and to create a " corrup- 
tion fund " for the purposes of the party to which 
these office-holders respectively belong. So in- 
tolerable has this abuse become that for some 
years tentative efforts have been made, even by 
administrations, to correct some of the more fla- 
grant evils of this system, and during the adminis- 
tration of General Grant a Civil Service Commis- 
sion was organized to deal with the subject. The 
influence of party, however, was too powerful for 
any permanent success during General Grant's 
presidency, and the Civil Service Commission came 
to an end. 

As President Hayes was elected upon a platform 



CUERE^^T QUESTIOIS'S. 229 

wliicli pledged his administration, in the event of 
the success at the polls, to the inauguration of a 
system of civil service, steps were inaugurated 
shortly after the 4th of March, 1877, to create a 
system of promotions by merit and permanence in 
the tenure of office. The contest, however, of the 
politicians against it, and the somewhat half- 
hearted manner in which the system was pressed 
by the administration itself, prevented any great 
progress being made in that reform during the ad- 
ministration of President Hayes. 

The Eepublican party again pledged itself to 
civil service reform in the platform of the conven- 
tion which nominated Mr. Garfield, and although 
during the early period after his inauguration 
much of the time of the administration was taken 
up by personal wrangles between senators and the 
President on the question of the exercise of the 
Presidential prerogative of appointments to office 
without dictation from senators, which operated to 
prevent any considerable progress being made in 
the introduction of a harmonious system of civil 
service, yet from the character of President Gar- 
field it was a reasonable assumption that during 
his administration some decided step in advance 
would be taken looking toward the practical intro- 
duction of this reform. 



330 COITSTITUTIONAL HISTOEY. 

The Democratic party discovered tliat during the 
contest for the Presidency they were confronted 
by a vast army of office-holders, contributing, 
through assessments on their salaries, to the extent 
of millions of dollars to the fund of their adversaries 
to prevent the accession of Democrats to power, 
such assessments were paid because they knew 
that their official existence would be terminated in 
the event of a change of administration under the 
domination of an adverse party. This fact brought 
about a conversion of the Democrats in favor of 
some civil service reform which would take that 
important element of opposition out of future 
contests to prevent their accession to power, so 
that in the United States both political parties 
are now pledged to the introduction of civil 
service reform, and a bill introduced by Senator 
Pendleton, a life-long Democrat, which secures 
fixity of tenure in all the lower grade of offices, is 
in a fair way to become a law; and there is but 
little doubt that within a few years the public 
service of the United States v/ill be brought more 
in harmony with the condition of public service in 
other civilized countries. 

The evil of the abominable "spoils" system in 
the United States is not so much the incompetency 
of the officers — as the American's adaptiveness en- 



CUEEENT QUESTIOTTS. 231 

ables him quickly to learn tlie routine duties of an 
office — nor in the waste of public moneys (because 
in a community so rich in productive power as that 
of the United States the amount which peculation 
can take from it is a burden easy to be borne) ; 
but the main evil is that the "spoils" system de- 
moralizes both parties, and makes contests, which 
should be for principle, mainly for plunder, and 
induces parties, in the hope of an accession of 
strength sufficient to obtain political power, not 
only to lower but absolutely to abandon their 
principles, and to make their platform conform 
to what they suppose will more rapidly win popu- 
lar success, and thus makes of the quadrennial 
presidential contests, mere scrambles for office. 

Important as it is to secure a reform in the civil 
service of the United States, that alone, however, 
even if successful, would not result in any improve- 
ment of a very permanent character in the condi- 
tions of the party systems of the United States. 
The causes which make parties permanent institu- 
tions in the machinery of government of constitu- 
tional monarchies, having like England large bodies 
of persons who are either placed in positions of ex- 
ceptional advantage, like that of the hereditary 
legislators of England, or permanent disadvantage 
like the classes not admitted to the suffrage, are 



232 CONSTITUTIONAL HISTOET. 

sucli that there will necessarily, so long as this 
condition of affairs exists, be a party seeking to 
diminish the power of those exceptionally well 
placed and to increase the political powers of 
those who are not admitted to the suffrage. This 
permanent cause for party existence does not pre- 
vail in the United States. And yet party lines are 
drawn as sharply in the United States as they are 
anywhere, and the tyranny of party is in many 
respects greater than anywhere else, because the 
caucus system has permeated it to the uttermost 
degree and created an autocracy of party managers, 
the hold of which will not be entirely shaken off — 
indeed, but slightly loosened — by the introduction 
of the civil service reform. 

That party management in the United States 
becomes more unscrupulous than it does elsewhere 
arises from the fact that in the United States there 
is no large leisure class of cultured men who, 
from a sense of duty or because of their large 
financial or property stake in the community, de- 
vote themselves to its political government. The 
absence of such a class and the intensity of occu- 
pation in industrial employments of the commu- 
nity at large, place the management of party in 
the hands of briefless lawyers and unsuccessful 
people in other avocations of life, who, having 



CUERE]S"T questio:n"s. 233 

been, as a general rule, eliminated downward from 
other occupations, devote themselves wholly to poli- 
tical intrigue and the perfecting of the political ma- 
chinery. As office, and speculation upon the money 
expenditures arising from the pursuit of office by 
others, through party machinery are their main ob- 
jects, it results in time in a domination of a class 
of politicians, to whom the principles of the party 
are mere cries to catch votes, and who doff and 
don those principles as it suits their convenience 
or their expectations of gain. That both political 
parties contain among their leaders men of a 
higher order of intellect, and that even the politi- 
cal machinery cannot get on without men of that 
stamp, to whom they are compelled to give honors 
and office, is unquestionably true. The character- 
ization of the average politician applies more 
especially to the people who have control of the 
machinery of politics in the large centres of popu- 
lation. This evil condition is promoted and is 
enabled to work its worst results by the system of 
representation now prevalent, with few exceptions, 
wherever representative institutions prevail, viz. : 
that of giving to majorities only in circumscribed 
election districts the right to representation, instead 
of, as far as possible, by some system of minority 
or totality representation, to aim at a representa- 



234 CONSTITUTIOI^AL HISTOEY. 

tion of tlie whole community. The hold that the 
party managers have upon the voters, who would 
otherwise rebel against their tyranny, is that if the 
voter fails to vote for the candidate they submit, 
he either is compelled to throw away his vote on 
one who has no chance of success, or directly or 
indirectly to aid the promotion to office of some 
one nominated by a party machinery equally 
odious and representing the other side in politics. 
If, on the other hand, in the election of represent- 
atives, small bodies of voters could detach them- 
selves from the main body, and by affiliation with 
other similarly detached bodies of voters within the 
State, succeed in representing one or more electoral 
quotas, as, for instance, in the State of New York, 
with its twelve hundred thousand voters, having 
thirty-three Members of Congress to elect, could 
thus secure one-thirty- third of the voting power of 
the State, these combined detachments could elect 
a representative independent of party, and in this 
way very important phase of popular opinion could 
seek and find its ov/n representation. Parties then 
would represent principles, and the principles not 
be the mere banner or shibboleth of party, hauled 
down and replaced as it suits its convenience, 
and the individual voter would become compara- 
tively independent of party dictation. This would 



CUEEENT QUESTIONS. 235 

act as a solvent of political parties as at present 
constituted ; would retain wliat in them is useful 
and good, and would utterly prevent the evil 
effects of the caucus system. This reform once in- 
troduced, would fructify into inestimable political 
blessings to the country, as it would make a politi- 
cal career independent of an accidental majority in 
a district, and secure for that career an entirely 
different class of statesmen and politicians than 
party machinery now brings to the front. The 
civil service reform confessedly will act only upon 
the minor offices within the United States. This 
reform of minority representation would be opera- 
tive for good in a change in the character of the 
nominees for every important elective office where 
there are more than two persons to be elected, 
and would totally alter the character of political 
parties as at present mischievously constituted. 

Another subject which will presently engage the 
attention of the American people is one which, 
since 1860, has been driven to the background, 
that of liberalizing its navigation laws and its sys- 
tem of tariff duties. The rate of taxation in the 
United States both as to internal revenue and the 
admission of foreign goods is as yet, it may be said, 
upon a war footing. "When the Southern delegates 
to Congress withdrew in 1861, the opportunity was 



236 COITSTITUTIOl^AL HISTORY. 

immediately seized upon by tlie protectionists to in- 
augurate a protective system on the pretence that 
the Government required an enormous amount of 
revenue to carry on the war, and that to increase the 
tariff would increase the revenue, as well as in- 
directly afford protection to a larger number of 
home industries. The long-continued adhesion of 
the Southern States to a system of free trade put 
for the time being every advocate of free trade in 
the North during the progress of the war in a false 
position, because it appeared as though he were in 
favor of the South in advocating free-trade theories. 
The fictitious prosperity created by the paper 
currency issued during the war, disguised for the 
time being the evil influence of a ^protective tariff. 
After the close of the war the paramount questions 
which ensrrossed the attention of the nation were 
necessarily those relating to the reconstruction of the 
Government of the Southern States, and the return 
to specie payments ; subsequently the depression 
caused by a return to specie payments enabled the 
advocates of a high tariff to attribute the evils which 
came synchronously with contraction, to contrac- 
tion alone. After specie payment was resumed 
an immediate impetus was given to the prosperity 
of the country by a combination of causes of which 
the return to a sound financial basis was but a part, 



CUEREIN-T QUESTIOI^S. 237 

successive good crops, the great tide of emigration, 
and the development of the mining industries of the 
Western territory as well as the opening up of vast 
tracts of virgin agricultural lands in the Northwest, 
together contributed since 1876 to enhance the pros- 
perity of the United States beyond all precedent. 
This again concealed from the people the evil effects 
of the tariff legislation, and enabled the tariff advo- 
cates to claim for their vicious system the prosper- 
ity which came despite their system. 

In one respect alone is the evil effect of restric- 
tion so visible that it cannot be attributed to any 
other cause, unaccompanied as it is by any mis- 
leading element of prosperity on the other hand, 
which counteracts it ; and that is, in the complete 
prostration of the shipping interests of the United 
States, and the almost total extinction of its com- 
mercial steam marine engaged in foreign trade. 

The beginning of a change in the restrictive 
legislation of the United States will probably first 
be made herein. The navigation laws will be made 
more liberal ; an American register will be able to 
be obtained on ships built in foreign jurisdictions, 
as an effort must soon be made to bring back to 
the United States part of the carrying trade which 
its navigation laws have utterly destroyed. An 
overflowing treasury will be another reason for 



238 CONSTITUTIOIS^AL HISTORY. 

reyising tlie tariff. Tlie plea of necessity for higher 
rates of duty, false as it is because the experience 
of England and France under the Cobden-Cheyal- 
ier treaty showed conclusively that the lowering of 
rates of duty increased the revenue, has also fallen 
away. A dangerous move, however, in opposition 
to free trade is already making itself apparent in 
an agitation for the removal of the internal revenues 
of the country, which yield a very considerable 
proportion of the annual income, in the expectation 
that the removal of these internal revenue duties 
will compel the maintenance of a high tariff. One 
of the first steps in that direction had already been 
made under the plea of a free breakfast table, by 
which the duty on tea and coffee was lowered, and 
by putting on the free list a large number of ar- 
ticles which the United States do not at all produce. 
Could the Democratic party, which is the tradi- 
tional party of free trade, be relied upon to be true 
to its principles upon that subject, it would be 
reasonable to believe that the very next Congress 
would succeed in producing considerable reform in 
that particular ; but the result of the recent Presi- 
dential election in which the Democratic party as 
the campaign was drawing to a close, became panic 
stricken by reason of the attack upon its revenue 
reform plank in its platform, has so demoralized 



CURRENT QUESTIOT^S. 239 

many of the so-called leaders of the party, that 
already indications are abundant that some of the 
Western leaders of that party will in the future 
Congress be out-and-out protectionists, and at- 
tempt to outbid the Republican party in the claim 
for popular confidence on the ground of willingness 
to afford protection to home industry as against 
foreign competition. A reorganization of parties 
will in all probability result from that question, 
after both great party organizations will have been 
shattered by it; and that reorganization would 
best be brought about by a previous introduction 
of the system of minority representation, which 
would assist in the detachment of great bodies of 
voters from party affiliations. 

One of the problems which, though locally con- 
fined to the Pacific coast, is one with which the 
Union as a whole is called upon to deal, is what is 
known as the Chinese question. Yast bodies of 
Celestials have been attracted to California and 
the Pacific States generally, and have there proved 
themselves to be very formidable competitors to 
American labor, as the wants of the Chinaman are 
simpler than those of the European and American, 
and his industry is more continuous and machine- 
like than that of his rivals. This has created a 
prejudice against his labor to that degree, that the 



340 COIirSTITUTIONAL HISTOEY. 

Constitution of the State of California has been 
amended to prevent corporations from employing 
Chinese labor, and the politics of the Pacific 
States is largely influenced by that question. 

As a mere branch of the protective system, the 
political economist must of course deny to the agi- 
tation against the Chinaman all validity ; but there 
is one argument which is advanced in favor of the 
exclusion of the Chinaman which has force, and 
to which the free-trade argument is no answer. 
The Chinaman refuses to become part of the body 
politic ; no matter how long his residence, he does 
not become a citizen : he expects to be interred in 
his country ; he lives in separate quarters ; and a 
considerable addition to that population creates a 
class of people who are not citizens, and who have 
no permanent interest in the welfare of the com- 
munity in which they reside. That such a class, 
if sufficiently numerous, may become a dangerous 
one to the civilization of a community, is unques- 
tionably true. That to a large degree, however, 
his seggregation from the rest of the community is 
due to prejudice against him, and that in time he 
may become by intermarriage, when that prejudice 
subsides, a citizen of the United States, is likewise 
true ; but this process is necessarily so slow that 
the unchecked emigration from that vast and teem- 



CURRENT QUESTIONS. 241 

ing hive of humanity, the Celestial empire, will pro- 
duce a considerable disturbance in the social well be- 
ing, and endanger the political condition of some of 
our far Western States, is possible. This question 
has already received partial attention by legislation 
by the Congress of the United States which must rely 
for justification upon a basis quite other than the 
false and delusive one of protection to American 
labor which such legislation is supposed to afford, 
A rapid decrease of the public debt takes the 
question of the payment of the bondholder in any 
but the best of faith out of the domain of political 
questions. But there still remains a monetary 
question which has been unfortunately muddled in 
the United States by demagoguery. The ratio of 
silver to gold having been fixed too low by the 
currency laws anterior to the war, silver was prac- 
tically driven out of circulation, gold upon that 
ratio being the cheaper metal. In 1873 Congress 
demonetized silver for all large payments. Subse- 
quently the rapid decline of silver in the markets 
of the world, due, in great part, to the demonetiza- 
tion of silver by Germany and the discovery of 
enormous silver-bearing lodes in the Rocky Moun- 
tains, caused a fear amongst silver producers that 
unless America remonetized silver, silver would fall 
to such an extent as to seriously impair the value 
11 



242 co:n'stitutiojS'AL history. 

of silver mines. The original dollar was 416 
grains standard. Its weight was changed in 1837 
to 4121^, and its fineness changed to 900 from 892. 
This coinage of 412^- grains was revived in 1S78 in 
what was known as the Bland Silver Bill, and it 
was made a legal tender for all debts, public and 
private, notwithstanding the fact that in recent 
years the value of silver had sunk so low that the 
value of the coin in the dollar of 412 J grains was 
less than eighty-eight cents. The amount re- 
quired to be coined under the bill is $2,000,000 per 
month. Thus far no inconvenience has resulted 
from this coinage, because a considerable part of it 
has been absorbed by the necessities for small 
change. A trade dollar also was issued for pur- 
poses of Eastern trade of 420 grains, but this is 
not a legal tender dollar. A large accumulation 
of the standard silver dollars is now in the vaults of 
the treasury, and if no amendment is made to the law 
as to the rate of coinage, the question will soon be 
upon the United States whether they desire to 
have an exclusive silver coinage of a depreciated 
character, as under the inevitable effects of the 
Gresham law the cheaper currency will drive out 
the dearer. That this effect would be counter- 
acted by a simultaneous remonetization of silver 
by the European governments which have hereto- 



CUEEE^'T QUESTIONS. 243 

fore demonetized it, tlius creating, for the time 
being, a strong demand for silver, is doubtless true ; 
but as the result of recent conferences on that 
subject gives us no hope in that direction, the Uni- 
ted States Government will either have to demone- 
tize silver or raise the number of grains in the 
silver dollar to a par with gold values, or in the 
future demonetize gold, and have its currency in a 
depreciated condition as compared with the actual 
values of the metal. The question in the United 
States is more complicated and taken out of the 
domain of pure theoretical and philosophical dis- 
cussion on its merits, as to whether a bi-metallic or 
a mono-metallic currency is better for a community, 
by the fact that the persons who were afflicted with 
the greenback mania have become imbued with 
the idea that, as greenbacks have now become 
equivalent to gold, their hope of prosperity lies in 
a depreciated silver currency. It is a curious 
illustration of how fast a hold the ijost Jioc ergo 
propter hoc error takes upon a community. As the in- 
habitants of the Northwestern States during a period 
of rapid issues of irredeemable paper money were en- 
abled to pay off their debts, and were prosperous in 
so doing, in a currency which incidently depreciated 
rapidly, many of them concluded that the deprecia- 
tion was the source of their prosperity, and that 



244 CONSTITUTIOl^AL HISTORY. 

therefore any currency tliat depreciates is useful 
to them. 

In the early period of the war — when the Confed- 
erate forces prevailed oyer the Union armies — 
the organization of the national banks was devised 
as a means compulsorily to float the public debt 
and to create a large home market for United 
States bonds. The State bank systems, which 
theretofore existed for furnishing a currency for the 
people of the United States, were, for good or ill, 
dependent entirely upon the legislation and the en- 
forcement of the laws in the various States of the 
Union. The facilities for counterfeiting these is- 
sues, as they were by no means uniform in device, 
were abundant, and the danger of being imposed upon 
by counterfeit and badly secured bills was very great. 
These causes produced a constant fluctuation in the 
value of such currency, and at any moment of finan- 
cial depression or crisis the currencies of the differ- 
ent States became of different values,and great losses 
were entailed upon the holders by reason of such 
fluctuations. The Government issues of paper 
money, together with the issues of the national 
banks, based upon deposit of United States bonds, 
gave a uniform character and value to the currency 
of the United States. This convenience is so 
great that the national banking system, although 



CUREETTT QUESTIOITS. 245 

opposed with considerable vigor at first, lias been 
accepted in the United States as a remedy for an 
evil much greater than that which it in its turn has 
brought about. There is, therefore, no probability 
of any concerted action against the national banks, 
and the system, with some slight modifications, is 
likely to be as permanent as the national debt. 
This system has also set at rest the question of the 
recharter of a United States bank. There is occa- 
sional and fitful opposition to the issues of the 
national banks, on the ground that the Government, 
by a direct issue of the notes represented by the 
national bank currency, would save the interest 
represented by such issue. The objection, however, 
on the other hand, to give the Government absolute 
control of the issue of the currency, and the sinister 
influence that it may thereby exercise upon the 
money market, is of so much more serious moment 
than the one of mere loss of interest, that thoughtful 
people have, on the whole, acquiesced in and deemed 
it preferable to maintain the system of national banks, 
rather than to place the monopoly of currency issue 
entirely in the hands of the Government ; and as 
hitherto no loss has been entailed upon the holders 
of national bank notes, as actual issues of notes are 
always secured, whatever fate may betide the bank 
in its discount and deposit department, the well- 



246 COISrSTITUTIONAL HISTORY. 

grounded objection that existed against the State 
issues, which caused monstrous losses to holders 
by failures of banks to redeem, does not prevail 
against the United States banks. However, if the 
present rate of extinction of the national debt con- 
tinues, in less than ten years some other basis than 
United States bonds must be provided for a uni- 
form currency. 

During the war large portions of the public 
domain were granted to private corporations to 
assist them in buildino; the Pacific railroads. This 
was followed by great grants to railway corpora- 
tions to assist in building railways but remotely 
connected with the Pacific system. However justi- 
fiable the motive originally was to grant the aid of 
public lands as an encouragement to the building 
of these great arteries of commerce, yet the aggre- 
gate public property thus given away became so 
great and the monopoly in public lands threatened 
to become so formidable, that a public opinion 
has been evoked in the United States that the 
public domain left under the control of the Govern- 
ment shall be used entirely for the purposes of the 
settlers, and not be thus given away. It is estimated 
that the domain given to the North Pacific Bailv/ay 
and branches is equal in territory to that of the 
whole of France. The increased value of the pub- 



cuere:s^t questions. 247 

lie domain of the United States will in itself be a 
check against extravagant concessions of land in 
that manner, and an intelligent public opinion has 
been created to prevent wastefulness hereafter. 

The advancing wealth of the nation resulting in 
a growing importance of governmental functions in 
different departments of the United States Gov- 
ernment, which are respectively under the direc- 
tion of one of the Cabinet officers, and the 
desirability that these departments should be sub- 
jected to the constant criticism of the Legislative 
branch of the Government, has caused an earnest 
agitation in favor of giving to Cabinet officers 
seats in the House of Kepresentatives, with a 
power to debate without voting on the result ; so that 
in the United States, as in England, interpellations 
may be made respecting the conduct of any one of 
the important departments of Government, and an 
answer elicited on the spot. At the beginning of 
the American Government these Cabinet officers 
were personal advisers of the President, were ap- 
pointed by him, and were responsible to him 
alone. The fact is now, however, recognized (more 
especially with reference to the Treasury) that 
the annual reports or budgets give insufficient in- 
formation, and that during the course of the year 
too much opportunity is afforded for sinister influ- 



248 CONSTITUTIONAL HISTOEY. 

ences to accomplisli ends having relation to stock- 
jobbing and the obtaining of private information 
of intentions on the part of the Treasury as to pol- 
icy, sale of bonds, etc., a remedy for which would 
be found if the Secretary of the Treasury were 
personally responsible to Congress. The further 
advantage expected to be derived from having the 
Cabinet or Ministry connected with the popular 
branch of the legislative body is that in that way 
some more direct responsibility will attach for the 
legislation of the Congressional session to the 
Government in power. One of the serious defects 
of all American legislation is the almost entire ab- 
sence of responsibility connected with legislation. 
The party having a majority has no organized 
Ministry charged with the duty of forwarding and 
formulating the public legislation of the session, 
and however faulty and slipshod, and even mis- 
chievous, the Congressional or State legislative 
law-making may prove during the course of the 
year, the party having a numerical majority in the 
legislative body is not responsible because there 
is no Ministry as part of the law-making power 
which proposes and promotes legislation. Laws 
are proposed by individual members upon their 
own responsibility, and are passed in a hap-hazard 
and slipshod sort of way. A further argument 



CUEEENT QUESTIOITS. 249 

in favor of this reform is that tlie necessity to 
explain the conduct of a department whenever an 
adverse investigator chooses to push an inquiry 
does certainly apply the corrective of publicity to 
all jobbery and peculation. 

On the other hand, the objection that is raised 
to a constitutional amendment which is necessary 
to produce this result is, that these departments 
being Executive departments, the men selected for 
them are persons who are supposed to possess ex- 
ecutive ability, which may or may not be accom- 
panied by oratorical powers such as are necessary 
for the purpose of holding their own in a popular 
arena of debate, and that in consequence of such 
a change, incumbents of Cabinet offices could no 
longer be selected from among the men who work 
instead of the men who talk^ about it, but must be 
selected from the latter class alone. This objec- 
tion, though it has some validity, is not so serious 
as at first blush would appear, because a very 
short experience teaches the average American to 
talk clearly and glibly on the subject that he has 
in hand. 



11* 



CHAPTEE YII. 

THE STATE CONSTITUTIONS; THE CHANGES THEEEIN, 
AND THEIE DEVELOPMENT. 

The Federal power being one of delegated 
powers, the States are in all matters not so dele- 
gated, the sole sovereignties. The State Constitu- 
tions map out the organization of the Government, 
limit its powers, and are in many respects more 
important conservators of the liberty of the citizen 
than the Federal Constitution itself ; for the reason 
that the powers not surrendered to the Govern- 
ment of the United States are much more extensive 
and much more immediately related to the rights 
of the individual, and therefore affect him more 
closely than the delegated powers of the Federal 
Government. In all his functions as citizen — in 
his amenability to the deprivation of life or liberty 
by the criminal law, in the assertion or denial of 
his rights through the civil administration of 
justice — the State, with but few exceptions, has 
absolute control over the life, liberty, and happi- 
ness of its citizens. This book, therefore, would 

250 



THE STATE COiN'STITUTIO^S'S. 251 

be incomplete if it did not give some account of the 
changes which have taken place in recent years in 
most of the State Constitutions, showing by means 
of these organic laws the course of governmental 
development. 

During the Revolutionary War most of the origi- 
nal thirteen States adopted State Constitutions ; 
many of which were redrafted shortly after the 
war, and before the formation of the Constitution 
of the United states, all the original States had 
written Constitutions. Every State, on its admis- 
sion to the Union, submits its Constitution to Con- 
gress, so as to give assurance thereby that it has, 
as required by the United States Constitution, 
adopted a republican form of government. These 
Constitutions all contain elaborate declarations of 
the rights of citizens which are not to be subjected 
to legislative or judicial interference, and which are 
reserved from the domain of Government. These 
declarations of rights also contain carefully worded 
provisions securing the right to the writ of habeas 
corpus, of jury trial, of exemption of private prop- 
erty from seizure for public purposes except on 
due compensation being made ; they set forth how 
such compensation shall be ascertained ; they insist 
upon guarantees of freedom of speech and of the 
press ; secure the right of petition and the right 



252 COITSTITUTIOITAL HISTOEY. 

of citizens to vote at all elections, and require 
tliat all officers shall either be directly elected by 
the people or appointed by some authority elected 
by the people. 

Since the War of the Rebellion the Southern 
States, in which slavery had theretofore existed, 
amended their Constitutions, by forever abolish- 
ing slavery and every form of human servi- 
tude. 

State Constitutions all divide the functions of 
government into Legislative, Judicial and Executive, 
specify the manner in which the Legislature shall 
be elected, and set forth the powers of the Execu- 
tive ; organize the Judicial system ; the manner of 
the appointment of the Judges, and confer upon them 
their respective jurisdictions. There is much uni- 
formity in that particular in the State Constitutions. 
The legislative power is generally vested in a legis- 
lative body composed of a Senate and an Assembly. 
The Senate is a small elective body of one member 
each from large senatorial districts, elected for a 
longer period of years than the more numerous 
and popular legislative body which is elected in 
smaller districts and for shorter terms. 

Each State has its Governor, elected from one to 
four years ; some have Lieutenant-Governors, and 
other elective executive officers. In such States 



THE STATE CONSTITUTIOTs^S. 253 

where public works exist, canal commissioners or 
superintendents of public works are either elected 
or appointed under constitutional provisions ; 
state engineers and surveyors exist ; state prison 
inspectors and other public boards to take charge 
of public works ; municipal organizations are 
created ; county organizations are established, and 
a system of decentralization of power is, as a gen- 
eral rule, adopted for the purpose of securing local 
self-government within the domain of the State. 
Provisions are contained in these Constitutions upon 
the subject of taxation to secure uniformity and 
equality therein ; to prevent the growth of public 
debts by throwing safeguards around the creation 
thereof. 

There are provisions in relation to the militia 
Most of the Constitutions now contain special arti- 
cles on the subject of bribery and official corrup- 
tion, and all contain provisions as to methods of 
amendment. In some of the States the Constitu- 
tion is limited as to duration to a number of years 
only, and State conventions are required to be called 
from time to time for the purpose of suggesting 
amendments. 

Some of the original Constitutions of the States 
required voting to be viva voce, and it was only in 
imitation of the Constitution of the State of New 



254 CO^STITUTIOlSrAL HISTORY. 

York of 1777, that voting by ballot became gener- 
ally introduced. 

In some of the earlier Constitutions of the States 
a property qualification was still required for the 
enjoyment of full citizenship, but this qualification 
has almost wholly been swept away. In the Coi\- 
stitution of the State of Massachusetts there is a 
provision that the voter shall be able to read the 
Constitution in the English language, and write his 
name, and by an amendment to its Constitution 
in 1863, two years in addition to the time necessary 
to qualify a resident to become a citizen of the 
United States, is necessary before he can be a 
citizen of Massachusetts. 

Under the Constitutions anterior to 1848 many 
of the officers now elected were appointed by the 
Governors. Notably so was this the case as" to judi- 
cial positions. The Constitution of 1846 of the 
State of New York, which, as to this change was 
the pioneer State of the Union, was drafted by 
men who were imbued with a spirit of radical 
democracy and who looked with suspicion upon all 
executive power. The Constitution thus framed 
therefore stripped the Executive office of many of the 
functions that it theretofore had and added enor- 
mously to the number of persons to be elected 
by the people, even Judges of courts of record 



THE STATE COTTSTITUTIOjS-S. • 2oo 

among tlie rest. This change, for reform it can 
scarcely be called, was adopted in other States, 
and it is only in recent years that the wis- 
dom of the change has been questioned and some 
modifications made in the original provision of the 
New York Constitution of 1846, and those of other.. 
States. It was found that electing Judges for so 
short a period of years as that provided for in the 
Constitution of 1846 of the State of New York re- 
sulted in obtaining in many instances, as Judges, 
mere politicians of a low order. It therefore be- 
came necessary either to return to the appointing 
power, or to make the tenure longer and the salary 
larger, so as to make the Judge, at least for a con- 
siderable period of time, independent of the favor of 
political parties. By amendments of 1869 the Judi- 
cial system in New York was recast ; the Judges of 
the higher courts were elected for a period of four- 
teen years instead of six, as theretofore, and public 
opinion was brought to bear upon the question of 
their remuneration, so that the salary of the Judges 
of the higher courts were made to approximate 
a little more closely to what could be earned by 
a lawyer in active practice. The opinion of the 
Bar, as expressed by organized bodies of lawyers, 
has been, however, almost uniformly in favor of a 
return to the system of appointment by the Execu- 



266 COI^STITUTIOlSrAL HISTOEY. 

tive : as the people as a whole, under existing 
American political conditions, are scarcely the 
proper custodians of the power wisely to select 
from among the Bar, the men who are best qualified 
for judicial functions, and the methods resorted to 
in order to secure nomination for judicial offices 
are oftentimes in themselves so demoralizing that it 
degrades the office in popular esteem, even if the 
selection of the people on the whole were as wise as 
that which could be made by the chief executive 
officer of the State, acting under a sense of his 
responsibility to the people for making a proper 
selection. The appointment to vacancies in judicial 
offices of course must still remain with the Execu- 
tive, but such appointments are generally limited 
until either the next succeeding general election 
or the election following the next succeeding gen- 
eral election. 

A firm conviction that decentralization of power 
was necessary to insure honesty in the administra- 
tion of j)ublic affairs injected into almost all of 
these Constitutions the requirement that munici- 
pal bodies shall elect their own officers, and that 
no one was to hold office within the municipality 
unless elected directly by the people in the locali- 
ty or appointed by an elected authority therein. 
This so multiplied elective officers within the State 



THE STATE COlS^STITUTIOiSrS. 257 

tliat at a general election the voter is bewildered 
with the number of people he is called upon to vote 
for, and he finds it, therefore, more and more diffi- 
cult to determine upon the fitness of candidates, 
and is thus put at the mercy of political wire pul- 
lers and leaders who make the selection for him 
and call upon him to vote aye or nay between two 
or at most three candidates for the same office. 
This difficulty has not yet met with an intelligent 
solution at the hands of the American statesman. 

Anterior to the adoption of the Constitution of 
1846 in the State of New York, and which is here 
taken as an example of the leading State Constitu- 
tions, because, as before stated, the amendments 
made by that Constitution were extensively followed 
in other States, a great source of evil was that the 
railway, banking, and insurance corporations cre- 
ated so formidable a lobby to secure special legis- 
lation and privileges for the benefit of such corpora- 
tions, thai; it was deemed expedient to cause general 
laws to be passed for their government, and restrain 
the Legislature thereafter from passing special laws 
upon the same subjects. As, however, the Legisla- 
ture was permitted to pass special laws in all cases 
wherein in its own opinion such legislation was 
necessary, the restriction, except as to banks and 
insurance companies, was not a very efficient one. 



258 CONSTITUTIONAL HISTORY. 

This question of special legislation is one wliich 
lias not been wisely dealt with by the people of the 
United States, who in their attempt to reform the evil 
arising from the lobby interested in pressing for 
and securing such special legislation have fallen 
into a worse evil. 

By a constitutional amendment adopted in the 
State of New York in 1874, the Legislature of the 
State is prohibited from passing special laws in a 
large number of enumerated cases which had there- 
tofore been the lobbyist's most lucrative field of 
practice, and produced the greatest amount of cor- 
ruption. This amendment has been followed in 
other States. Albeit in Missouri and Pennsylvania, 
constitutional amendments of the same character 
had been adopted even prior to the one of New 
York. It was supposed that thereby a blow would 
be struck at corrupt legislation, and that the Legis- 
lature would be free to pass general laws upon these 
matters and be thereafter absolved from all further 
concern in relation to the subject. It was not then 
seen that the most dangerous form of sjiecial legis- 
lation is that which comes under the guise of a 
general law, or as an amendment to the general 
law, and that after special legislation is forbidden, 
all persons desiring special privileges or legislation 
to meet a particular case, could just as well influence 



THE STATE CONSTITUTIOKS. 259 

the Legislature to amend the general law to meet 
his case so as to give him a special privilege, as to 
cause a special law to be passed. In that manner 
one law after another has been placed, since 1875, 
upon the statute book of the State of New York 
and other States which followed the lead of New 
York, having their origin in personal interests only, 
and to meet special cases, thus destroying whatever 
there was of harmonious legislation in the general 
body of the law. This evil is more insidious and 
in its effects much more dangerous than the one 
which it was intended to remedy, and is one 
especially mischievous in the United States, be- 
cause, as already shown, there is no body of perma- 
nent legislators standing guard over the laws of 
the State, and no responsible ministry having 
charge of public legislation and responsible for it. 
There is not even party responsibility in relation to 
such laws, which are passed or neglected under tlie 
pressure of private interests or in the absence of 
any such pressure fail. It would have been very 
much wiser to have methodized legislation; to 
have separated, as the English Parliament has 
done, public or general legislation from all leg- 
islation which is private or local in character ; to 
require notice of application for private or local 
acts before the convening of the legislative body ; 



260 CO]N"STITUTIONAL HISTOEY. 

to treat them not as laws, but ratlier in the nature 
of judicial determinations on the part of the Legis- 
lature after a trial upon their merits at which wit- 
nesses are examined and a trained Bar may exert 
its talents for or against the bill, and secure its 
proper amendment. This would convert the lobby 
into a parliamentary bar ; would bring into the 
sunlight of publicity all schemes, be they of a 
sinister or beneficial character, affecting private 
individuals, corporations or localities, by requiring 
application for such special legislation to be filed 
before the opening of the session, and due notice of 
trial being given by advertisement, etc., thus giving 
to the community security that such legislation 
cannot be smuggled through at the latter end of the 
session, and enabling all opponents to be heard 
upon the merits as to the impropriety of such mea- 
sures. 

This division of private from local laws would 
tend also to elevate the character of public legisla- 
tion ; would prevent public or general laws from 
being used as mere instruments of private gain, and 
effectually extirpate the evil which was intended to 
be removed — a corrupt lobby seeking to gain an ad- 
vantage from the community by the secret or corrupt 
passage of improper private and local bills. 

The almost unlimited power of municipalities 



THE STATE COI^STITUTIONS. 261 

and counties to create debts for their own purpose 
or in aid of public works, led to a very formidable 
evil between 1850 and 1870 by the rolling up of 
enormous local public debts in aid of railway cor- 
porations. While in many instances this aid was 
perhaps necessary and judicious, yet it led to so 
much corruption and abuse throughout the States, 
and became so burdensome upon the localities, 
which frequently after the aid was voted failed 
to get the public improvement for the purposes for 
which they created the debt, and imposed taxes 
upon themselves, that in almost every State in the 
Union limitations were put upon the lending of the 
public credit or voting aid to railway corpora- 
tions by counties and cities. And in many States 
such aid is now entirely prohibited. 

The abuses incident to the distribution of public 
funds in aid of charities connected with religious 
establishments, where any particular religious de- 
nomination prevailed, as particularly in the city of 
New York, became of so grave a character that a 
constitutional amendment was adopted, and in 
many other States followed, by which cities were 
prohibited from granting any such aid to religious 
institutions. Exemptions from taxation have been 
a fruitful source of mischief in many States ; insti- 
tutions of a charitable and religious nature have en- 



262 COI^STITUTIOlSrAL HISTOEY. 

jojed such exemption on the ground that impos- 
ing taxation upon the values of their property 
would be onerous in the extreme, it being dedicated 
in a certain sense to public use, but it was soon 
found that many of these institutions had excep- 
tional advantages for property not actually used for 
charitable or religious purposes, and which property 
while held by them was free from the burdens im- 
posed upon the taxpayers of the State. This 
led to amendments of some of the State Consti- 
tutions limiting such exemptions to the building 
and land only upon which is erected such charitable 
or religious institution, and to no other lands 
whatever. 

The evils of corporate management have caused 
several of the States to provide as a remedy a sys- 
tem of minority representation in the election of 
their Boards of Direction as to all corporations 
thereafter to be organized ; both Pennsylvania and 
Missouri have engrafted such provisions upon their 
Constitutions. Illinois in the selection of the Leois- 
lature, and Pennsylvania in the election of Judges 
of the Supreme Court, are the only States which 
adopted minority representation for political offices. 
In Illinois minority representation is secured in 
all legislative districts by the provision that, 
in all elections of representatives, each qualified 



THE STATE CONSTITUTIOIS^S. 263 

voter may cast as many votes for one candidate as 
there are representatives to be elected, or may dis- 
tribute the same or equal parts thereof among the 
candidates as he may see fit. This secures, in a 
very limited way, cumulative voting and therefore 
minority representation. 

In some of the States the agitation for women's 
rights has resulted in securing for married women 
by constitutional provisions or legislation an un- 
disturbed enjoyment of property rights. In none of 
the States, however, as yet have women become 
full citizens. 

A fruitful source of recent constitutional amend- 
ments throughout the States has been the growing 
power of the railroad corporations. In almost all 
the Western States elaborate provisions are con- 
tained in the State Constitutions by recent amend- 
ments by which railways are declared to be public 
highways. The Legislature is required to pass 
laws limiting the amount of charges ; the railway 
is constitutionally inhibited from discriminating in 
charges or facilities in transportation, or making 
any discrimination between transportation compa- 
nies or individuals, either by way of abatement, 
drawback or otherwise, and also from making any 
preference in furnishing cars or motive power 
between different individuals, and a new set of 



264 CONSTITUTIOT^AL HISTOEY. 

officers, known as Railway Commissioners, have 
been called into existence. The great State of 
New York has as yet not acted in the same 
direction, but this defect in the State Constitu- 
tion is now in process of being remedied by legis- 
lation having the same end in view. 

In some of the States the evil of constant altera- 
tions in the law and the uncertainties created thereby 
have been sought to be prevented by constitu- 
tional changes making the ses sions of the Legisla- 
ture biennial instead of annual. This change 
appears to be a very short-sighted remedial mea- 
sure for an undoubted evil. In the States having 
biennial Legislatures, great inconvenience at times 
results from the impossibility of promptly conven- 
ing the Legislature for the purpose of passing a law 
of pressing necessity. If less attention is given to 
the quality of laws to be passed, as many bad laws 
can be passed in a short session of one Legislature 
as in two sessions of consecutive Legislatures. The 
true corrective of this evil is the one already re- 
ferred to of properly methodizing legislation, and 
dividing public from private acts, creating also some 
degree of responsibility for public acts by having 
a council of revision or some public body to whom 
the public acts are to be referred, and which shall 
report upon the same as an Advisory Board to the 



THE STATE CONSTITUTIONS. 265 

legislative bodies. Of course, the main evil of bad 
legislation arises from the fact that the legislators 
are not qualified for their work. Annual elections 
of large legislative bodies from the body of the 
people or the members of political caucuses, small 
pay for the time given to the public during that 
period, and the unfortunate American political con- 
ditions arising from the domination of the " boss " 
and caucus systems, bring as a general rule together 
in the legislative halls of the various States of the 
Union a body of men but little qualified for the 
most important work that can be entrusted into hu- 
man hands — that of legislating wisely and well for 
their fellow-men. This evil will find its remedy in 
the United States only after a considerable period of 
time. One of the conditions of its correction is, as 
already observed, to dissolve political parties as at 
present constituted, by minority representation, 
and to introduce a thorough system of civil service 
reform. 

The development of individual wealth will also 
in time come to the aid of the people of the United 
States ; as through it they will possess a body of 
men so emancipated from all necessity of looking 
after their personal interests, that they can devote 
their whole time to the public service. 

The change from annual to biennial sessions of 
12 



266 CONSTITUTIONAL HISTORY. 

the Legislature seems to be as inadequate for the 
purpose of curing the evils of bad legislation as 
would be the conduct of a man at the head of a large 
industrial establishment, who, finding that in 
consequence of its mismanagement by his super- 
intendents he runs behindhand year after year, 
determines to work but half time as a corrective, 
instead of changing his managers and changing his 
methods. He may not (if he is doomed to run be- 
hindhand) get himself into the bankruptcy courts 
by working half time quite as fast as by working 
full time ; but it clearly would be better for him 
either to shut up shop entirely, or to reform his 
methods of doing business. If biennial Legislatures 
is a remedy, not to have the Legislatures meet at 
all would be still a better one ; but this mistaken 
measure will continue to be adopted precisely as the 
limitation upon the special legislation has run its 
course until the evils occasioned by the supposed 
change or reform will bring the people of the United 
States to a realizing sense of the fact that they have 
gone for relief in the wrong direction. 

The great evil in connection with State institu- 
tions is that which arises from the difficulty in 
dealing with municipalities so as to leave them on 
the one hand the power to govern themselves, and 
yet on the other to restrict a tendency which in all 



THE STATE COITSTITUTIONS. 267 

American cities has developed itself to an 
alarming degree, its unlimited debt-creating power 
and methods of unwise taxation. 

Within the twenty years from 1860 to 1880, the 
debts of the cities of the Union rose from about 
$100,000,000 to $682,000,000. From 1860 to 1875, 
the increase of debt in eleven cities was 270.9 
per cent. ; increase of taxation, 362.2 per cent. ; 
whereas the increase in taxable valuation was but 
156.9 per cent. ; and increase in population but 70 
per cent. 

A large part of this increase of city indebtedness 
is doubtless due to the fact that in a concentrated 
community wherein the vast expenditures involved 
in city administration are to be made, such expen- 
ditures in themselves exercise a corrupting influ- 
ence upon political elections, and create a numerous 
body of voters who, by reason of such interest in 
city expenditures, vote for and maintain in office 
persons pledged to increase them, or in any event 
not to reduce them. Political parties find in the 
salaries of city officials and the numerous indirect 
advantages arising from the contracts to be awarded 
by the city for all the purposes of city administra- 
tion, such as water supply, street cleaning, sewer- 
age, lighting, etc., opening of streets and highways, 
an enormous fund to perpetuate their power and to 



268 COTTSTITUTIONAL HISTORY. 

supply tliem with the necessary means to manipnlate 
the results of the ballot box ; but the evil is not due 
wholly to city administrators alone. The members 
of the Legislatures of the various States have found 
in the offices of a great city, subject to their sway, 
abundant opportunities for placing friends in office 
and also to secure personal advantages of a more 
lucrative character. 

Before the charter amendments of 1871 for the 
city of New York, the annual tax levy of that city, 
■ — appropriations for the various purposes and ob- 
jects of the city government — was prepared by the 
Legislature in the same manner as the supply bill 
for the State ; and the corruptions incident to the 
items which found place in such tax levy were 
greater at that period than have prevailed since 
the city government had power from that period 
on to determine upon the amount of tax to be raised 
and the purposes for which it was to be expended, 
without having recourse to State legislation. Num- 
erous commissions for special municipal purposes 
were appointed by the Legislature, having indepen- 
dent powers to create debt without any vote of the 
city or any part of its inhabitants, and thus not only 
was the amount annually to be levied by tax heavily 
increased by legislative interference, but also the 
permanent debt was largely increased, frequently 



THE STATE CONSTITUTIONS. 269 

without tlie consent and at all times without the 
power of the city to prevent such imposition. 

Therefore, while it is true that the city adminis- 
tration, when left to itself under the peculiar cir- 
cumstances of a large proletarian class in every city 
in the Union having voting power, is likely to run 
into excesses of debt and extravagant administra- 
tion, recourse to the Legislature and leaving the 
city powerless to administer its own affairs, has 
been shown by past experience to result in even 
worse effects than decentralization of power leads to. 
This condition of affairs has led to an investio-a- 
tion of the subject to what extent city administration 
is part of the government of the nation, and whether 
or not it is not largely the mere administration 
of private property upon a cooperative plan. 
Certainly many of the functions of the city gov- 
ernment, such as lighting, paving, and laying 
out of streets, and the supply of water, are 
not truly governmental functions, but private ser- 
vices, which are performed under governmental 
forms for the owners of real estate who would 
themselves provide such service in the absence of 
any government taking it in charge. Various efforts 
have been made, therefore, to create somewhere in 
the city administration a veto power, lodged in the 
hands of tax and rent payers, upon such expendi- 



270 COIS-STITUTIOIirAL HISTORY. 

tures without tliereby limiting the suffrage as to any 
general governmental city functions. Thus far these 
efforts have not onlj proved unavailing, but have 
cast some degree of odium upon their advocates as 
being supposed to be adverse to the fundamental 
principles upon which the institution of American 
governments are based. That this charge against 
them is not true does not seem much to affect the 
question, because large bodies of people do not 
closely analyze, and it requires some intellectual 
effort to appreciate the difference between a city ad- 
ministration and the general Government. That the 
tax-eaters should not have absolute control over the 
taxes to be expended by the tax-payers would appear 
to be an entirely axiomatic truth in political philos- 
ophy. That the population of cities will increase, 
and that the pressure of competition will necessarily 
add largely to the proletariat class when any check 
comes to the prosperity of the people, would also 
appear to be almost as self-evident. Sooner or later, 
therefore, the people of the United States will either 
have to adopt some method of city administration not 
copied from the administrative forms of the United 
States or the States, by which such a regulation 
of the suffrage shall take place that those who have 
a permanent stake in the community shall,, upon 
all expenditures involving large amounts in cities, 



THE STATE CONSTITUTIONS. 271 

have some voice in determining the amount and 
purposes of such expenditures ; or fairly and freely 
recourse must be had to a system of minority repre- 
sentation to secure this result. Indeed the adoption 
of the latter reform would, without resort to any 
limitation of suffrage, in itself, check the ex- 
travagant, corrupt and useless expenditures in 
cities; but in the absence of the introduc- 
tion of any such system, the problem is becoming 
a very serious one as to how, with the growth 
of a pauper element, property rights in cities can 
be protected from confiscation at the hands of the 
non-producing classes. That the suffrage is a 
spear as well as a shield is a fact which many 
writers on suffrage leave out of sight; that it 
not only protects the holder of the vote from ag- 
gression, from which point of view it is unobjec- 
tionable, but also enables him to aggress upon the 
rights of others by means of the taxing power, is a 
fact to which more and more weight must be given as 
population increases and the suffrage is extended. 
Some of the evils incident to city government in 
the United States are remediable by other means. 
One of the fruitful sources of evil influences exercised 
upon municipal administrations arises from a false 
distribution of power in the city governments. 
Departments which should be under some central 



273 COlS^STITUTIOlSrAL HISTOEY. 

authority and responsible to it, the members of 
which should be removable by the Mayor at will, 
who in turn is responsible for the good government 
of the city to its inhabitants, have become inde- 
pendent bodies having debt-creating power without 
central control. 

The city council chamber, even when not strip- 
ped of all responsible legislative functions, as has 
been notably the case in the city of New York, is 
called into being under a faulty system. Small 
districts are created for the election of members of 
the Board of Aldermen, and frequently a provision 
is made by which minorities and majorities in the 
districts have equal representation, so that either 
small politicans come to the surface in consequence 
of the small district, or caucus nominations are 
equivalent to an election, and the election becomes 
a mere form. This has at times been called minor- 
ity representation, but it is not so in any proper 
sense, as it is mere party representation, and not 
representation of the people. 

Attempts have been made in some of the Consti- 
tutions of the States by limiting the ratio of assess- 
ment to check extravagance, but this has proved 
quite futile as a remedy, because the law is evaded 
by increasing the assessment so as to keep within 
the ratio, so that in some of the cities where such a 



THE STATE CONSTITUTIOISIS. 273 

limitation has prevailed the assessed value of prop- 
erty is largely in excess of its actual value, and the 
ratio of taxation takes a considerable proportion of 
the actual rental value of real property. 

The laws in relation to cities are so constantly 
changed by the political parties in power within 
the State, so as to increase patronage in favor of 
the party in power, and to decrease it as against 
the adverse party, by either change of officials in 
office or a transfer of large powers from one de- 
partment to another, that the Chief Justice of the 
State of New York in 1875, in a judicial opinion 
stated that "it is clearly unsafe for any one to 
speak confidently of the exact condition of the 
law in respect to public improvements in the cities 
of New York and Brooklyn. The enactments with 
reference thereto have been modified, superseded 
and repealed so often and to such an extent that it 
is difficult to ascertain just what statutes are in 
force at any particular time." This grave condi- 
tion of affairs has led many of the States to appoint 
bodies of men especially commissioned to inquire 
into the causes of these evils, and to suggest reme- 
dies. New York, Pennsylvania and New Jersey have 
received reports from the commissions thus ap- 
pointed, but the remedies proposed threatened 

so seriously to impair both the power and the 
12* 



274 CONSTITUTIONAL HISTORY. 

patronage of tlie politicians tliat they failed of ac- 
ceptance. 

It will be found that the main remedy for almost 
all the evils of administrative machinery of Ameri- 
can cities will be in the adoption of a constitutional 
limitation upon the power to create indebtedness, 
and constitutional inhibition upon the Legislature 
to interfere with the city's administration unless 
such legislation is demanded by the inhabitants of 
the city in some form or manner, and the remodel- 
ing of city charters so as to centre responsibility 
in the Mayor and the Board of Aldermen, and to 
subordinate all executive heads of departments 
to the Mayor and to the legislative departments of 
the city. 



APPENDIX. 



ARTICLES OF CONFEDERiLTION AND PERPETUAL 
UNION" BETWEEN THE STATES. 

TO ALL TO WHOM THESE PRESENTS SHALL COME, 
AVE THE UNDERSIGNED DELEGATES OF THE STATES 
AFFIXED TO OUR NAMES, SEND GREETING.— Wliereas 
the Delegates of the United States of America in Congress 
assembled did on the 15th day of November in the Year of 
our Lord 1777, and in the Second Year of the Independence 
of America agree to certain articles of Confederation and per- 
petual Union between the States of New Hampshire, Massa- 
chusetts-bay, Rhode-island and Providence Plantations, Con- 
necticut, New- York, New-Jersey, Pennsylvania, Delaware, 
Maryland, Virginia, North-Carolina, South-Carolina, and 
Georgia, in the words following, viz. 

"ARTICLES OF CONFEDERATION AND PERPETUAL 
UNION BETWEEN THE STATES OF NEW-HAMP- 
SHIRE, MASSACHUSETTS-BAY, RHODE-ISLAND AND 
PROVIDENCE PLANTATIONS, CONNECTICUT, NEW- 
YORK, NEW-JERSEY, PENNSYLVANIA, DELAWARE, 
MARYLAND, VIRGINIA, NORTH-CAROLINA, SOUTH- 
CAROLINA, AND GEORGIA. 

ARTICLE I. The Stile of this confederacy shall be "The 
United States of America." 

275 



276 APPENDIX. 

ARTICLE 11. Each state retains its sovereignty, freedom 
and independence, and every Power, Jurisdiction and right, 
which is not by this confederation expressly delegated to the 
united states, in congress assembled. 

ARTICLE III. The said states hereby severally enter into a 
firm league of friendship with each other, for their common 
defence, the security of their Liberties, and their mutual and 
general welfare, binding themselves to assist each other, against 
all force offered to, or attacks made upon them, or any of them, 
on account of religion, sovereignty, trade, or any other pre- 
tence whatever. 

ARTICLE IV. The better to secure and perpetuate mutual 
friendship and intercourse among the j^eople of the different 
states in this union, the free inhabitants of each of these states, 
paupers, vagabonds, and fugitives from Justice excepted, shall 
be entitled to all privileges and immunities of free citizens in 
the several states ; and the people of each state shall have free 
ingress and regress to and from any other state, and shall 
enjoy therein all the privileges of trade and commerce, subject 
to the same duties, impositions and restrictions as the inhabit- 
ants thereof respectively, provided that such restriction shall 
not extend so far as to prevent the removal of projDerty im- 
ported into any state, to any other state of which the Owner 
is an inhabitant ; provided also that no imposition, duties or 
restriction shall be laid by any state, on the property of the 
united states, or either of them. 

If any person guilty of, or charged with treason, felony, or 
other high misdemeanor in any state, shall flee from Justice, 
and be found in any of the united states, he shall upon de- 
mand of the Governor or, executive power, of the state from 
which he fled, be delivered up and removed to the state hav- 
ing jurisdiction of his offence. 

Full faith and credit shall be given in each of these states 
to the records, acts and judicial proceedings of the courts and 
magistrates of every other state. 



APPENDIX. 277 

ARTICLE Y. For the more couA'enient management of the 
general interest of the united states, delegates shall be annu- 
alh^ appointed in such manner as the legislature of each state 
shall direct, to meet in congress on the first Monday in No- 
bember, in every year, with a power reserved to each state, 
to recal its delegates, or any of them, at any time within the 
year, and to send others in their stead, for the remainder of 
the Year. 

ISTo state shall be represented in congress by less than two, 
nor by more than seven members; and no person shall be 
capable of being a delegate for more than three years in any 
term of six years ; nor shall any person, being a delegate, be 
capable of holding any office under the united states, for which 
he or another for his benefit, receives any salary, fees or emol- 
ument of any kind. 

Each state shall maintain its own delegates in any meeting 
of the states, and while they act as members of the committee 
of the states. 

^ In determining questions in the united states, in congress 
assembled, each state shall have one vote. 

Freedom of speech and debate in congress shall not be im- 
peached or questioned in any Court, or place out of congress, 
and the members of congress shall be protected in their per- 
sons from arrests and imprisonments, during the time of their 
going to and from, and attendance on congress, excej^t for 
treason, felony, or breach of the peace. 

ARTICLE YI. No state M-ithout the Consent of the united 
states in congress assembled, shall send any embassy to, or 
receive any embassy from, or enter into any conference, agree- 
ment, alliance or treaty w^ith any King prince or state ; nor 
shall any person holding any office of profit or trust under the 
united states, or any of them, accept of any present, emolu- 
ment, office or title of any kind whatever from any king, 
prince or foreign state ; nor shall the united states in congress 
assembled, or any of them, grant any title of nobility. 



278 APPElSiDIX. 

No two or more states shall enter into any treaty, confedera- 
tion or alliance whatever between them, without the consent 
of the united states in congress assembled,, specifying accu- 
rately the purposes for which tlie same is to be entered into, 
and how long it shall continue. 

No state shall lay any imposts or duties, which may inter- 
fere with any stipulations in treaties, entered into by the 
united states in congress assembled, with any king, prince or 
state, in pursuance of any treaties already proposed by con- 
gress, to the courts of France and Spain. 

No vessels of war shall be kept up in time of peace by any 
state, except such number only, as shall be deemed necessary 
by the united states in congress assembled, for the defence of 
such state, or its trade ; nor shall any body of forces be kept 
up by any state, in time of peace, except such number only, as 
in the judgment of the united states, in congress assembled, 
shall be deemed requisite to garrison the forts necessary for 
the defence of such state ; but every state shall always keep 
up a well regulated and disciplined militia, sufiiciently armed 
and accoutred, and shall provide and have constantly ready for 
use, in public stores, a due number of field pieces and tents, 
and a proper quantity of arms, ammunition and camp equi- 
page. 

No state shall engage in any war without the consent of the 
united states in congress assembled, unless such state be 
actually invaded by enemies, or shall have received certain 
advice of a resolution being formed by some nation of Indians 
to invade such state, and the danger is so imminent as not to 
admit of a delay, till the united states in congress assembled 
caln be consulted : nor shall any state grant commissions to any 
ships or vessels of war, nor letters of marque or reprisal, 
except it be after a declaration of war by the united states in 
congress assembled, and then only against the kingdom or 
state and the subjects thereof, against which war has been so 
declared, and under such regulations as shall be established 
by the united states in congress assembled, unless such state 



APPENDIX. 279 

be infested by pirates, in which case vessels of war may be 
fitted out for that occasion, and kept so long as the danger 
shall continue, or until the united states in congress assem- 
bled shall determine otherwise. 

ARTICLE VII. When land-forces are raised by any state 
for the common defence, all officers of or under the rank of 
colonel, sh:ll be appointed by the legislature of each state 
respectively by whom such forces shall be raised, or in such 
manner as such state shall direct, and all vacancies shall be 
filled up b}^ the state which first made the appointment. 

ARTICLE YIII. All charges of war, and all other expenses 
that shall be incurred for the common defence or general wel- 
fare, and allowed by the united states in congress assembled, 
shall be defrayed out of a common treasur}^, which shall be 
supplied by the several states, in proportion to the value of all 
land within each state, granted to or surveyed for any Person, 
as such land and the buildings and improvements thereon 
shall be estimated according to such mode as the united states 
in congress assembled, shall from time to time, direct and 
appoint. The taxes for paying that proportion shall be laid 
and levied by the atithority and direction of the legislatures of 
the several states within the time agreed upon by the united 
states in congress assembled. 

ARTICLE IX. The united states in congress assembled, 
shall have the sole and exclusive right and power of deter- 
mining on peace and war, except in the cases mentioned in 
the 6th article — of sending and receiving ambassadors — 
entering into treaties and alliances, provided that no treaty 
of commerce shall be made whereby the legislative power of 
the respective states shall be restrained from imposing such 
imposts and duties on foreigners, as their own people are sub- 
jected to, or from prohibiting the exportation or importation 
of any species of goods or commodities whatsoever — of estab- 



280 APPENDIX. 

lishing rules for deciding in all cases, what captures on land 
or Avater shall be legal, and in what manner prizes taken 
by land or naval forces in the service of the united states 
shall be divided or appropriated — of granting letters of marque 
and reprisal in times of peace — appointing courts for the trial 
of piracies and felonies committed on the high seas and estab- 
lishing courts for receiving and determining finally appeals in 
all cases of captures, provided that no member of congress 
shall be appointed a judge of any of the said courts. 

The united states in congress assembled shall also be the 
last resort on appeal in all disputes and differences now sub- 
sisting or that hereafter may arise between two or more states 
concerning boundary, jurisdiction or any other cause what- 
ever ; which authority sliall always be exercised in the man- 
ner following. Whenever the legislative or executive 
authority or lawful agent of any state in controversy with 
another shall present a petition to congress, stating the mat- 
ter in question and praying for a -hearing, notice thereof shall 
be given by order of congress to the legislative or executive 
authority of the other state in controversy, and a day assigned 
for the appearance of the parties by their lawful agents, who 
shall then be directed to appoint by joint consent, commis- 
sioners or judges to constitute a court for hearing and deter- 
mining the matter in question : but if they cannot agree, 
congress shall name three persons out of each of the united 
states, and from the list of such persons each party shall 
alternately strike out one, the petitioners beginning, until the 
number shall be reduced to thirteen ; and from that number 
not less than seven, nor more than nine names as congress 
shall direct, shall in the presence of congress be drawn out by 
lot, and the persons whose names shall be so draM^n or any 
•five of them, shall be commissioners or judges, to hear and 
finally determine the controversy, so always as a major part of 
the judges who shall hear the cause shall agree in the determi- 
nation : and if either party shall neglect to attend at the day ap- 
pointed, without showing reasons, which congi-ess shall judge 



APPENDIX. 581 

sufficient, or being present shall refuse to strike, the congress 
shall proceed to nominate three persons out of each state, and 
the secretary of congress shall strike in behalf of such party ab- 
sent or refusing ; and the judgment and sentence of the court 
to be appointed, in the manner before prescribed, shall be final 
and conclusive; and if any of the parties shall refuse to submit 
to the authority of such court, or to appear or defend their claim 
or cause, the court shall nevertheless proceed to pronounce sen- 
tence, or judgment, which shall in like manner be final and de- 
cisive, the judgment, or sentence and other proceedings being 
in either case transmitted to congress, and lodged among the 
acts of congress for the security of the parties concerned : 
provided that every commissioner, before he sits in judgment, 
shall take an oath to be administered by one of the judges of 
the supreme or superior court of the state, where the cause 
shall be tried, " well and truly to hear and determine the mat- 
ter in question, according to the best of his judgment, without 
favour, affection or hojic of reward : " provided also that no 
state shall be deprived of territory for the benefit of the united 
states. 

All controversies concerning the private right of soil 
claimed under different grants of two or more states, whose 
jurisdictions as they may respect such lands, and the states 
which passed such grants are adjusted, the said grants or 
either of them being at the same time claimed to have orig- 
inated antecedent to such settlement of jurisdiction, shall, on 
the petition of either party to the congress of the united 
states, be finally determined as near as may be in the same 
manner as is before prescribed for deciding disputes respect- 
ing territorial jurisdiction between different states. 

The united states in congress assembled shall also have 
the sole and exclusive right and jDower of regulating the alloy 
and value of coin struck by their own authority, or by that 
of the respective states — fixing the standard of weights and 
measures throughout the United States — regulating the trade 
and managing all affairs with the Indians, not members of 



282 APPENDIX. 

any of the states, provided that the legislative right of any- 
state within its own limits be not infringed or violated — 
establishing or regulating post-offices from one state to an- 
other, throughout all the united states, and exacting such 
postage on the papers passing thro' the same as may be 
requisite to defray the expenses of the said office — appointing 
all officers of the land forces, in the service of the united 
states, excepting regimental officers — appointing all the 
officers of the naval forces, and commissioning all officers 
whatever in the service of the united states — making rules for 
the government and regulation of the said land and naval 
forces, and directing their operations. 

The united states in congress assembled shall have authority 
to appoint a committee, to sit in the recess of congress, to be 
denominated "A Committee of the States," and to consist 
of one delegate from eacli state ; and to appoint sucli other 
committees and civil officers as may be necessary for man- 
aging the general affairs of the united states under their 
direction — to appoint one of their number to preside, pro- 
vided that no person be allowed to serve in the office of 
president more than one year in any term of three years ; 
to ascertain tlie necessary sums of Money to be raised for the 
service of the united states, and to appropriate and apply 
the same for defraying the jDublic exjoenses — to borrow 
money, or emit bills on the credit of the united states, trans- 
mitting every half year to the respective states an account of 
the sums of money so borrowed or emitted, — to build and 
equip a navy — to agree upon the number of land forces, and 
to make requisitions from each state for its quota, in pro- 
portion to the number of white inhabitants in such state; 
which requisition shall be binding, and thereupon the legis- 
lature of each state shall appoint the regimental officers, 
raise the men and cloath, arm and equip them in a soldier 
like manner, at the expense of the united states; and the 
officers and men so cloathed, armed and equipped shall 
march to the place appointed, and within the time agreed on 



APPENDIX. 283 

by the united states in congress assembled : But if the united 
states in congress assembled shall, on consideration of cir- 
cumstances judge proper that any state should not raise men, 
or sliould raise a smaller number than its quota, and that any 
other state should raise a greater number of men than the 
quota thereof, such extra number shall be raised, officered, 
cloathed, armed and equipped in the "same manner as tlie 
quota of such state, unless the legislature of such state shall 
judge that such extra number cannot be safely sjDared out of 
the same, in which case tliey shall raise, officer, cloath, arm 
and equip as many of such extra number as they judge can 
be safely spared. And the officers and men so cloathed, 
armed and equipjied, shall march to the place apj^ointed, 
and within the time agreed on by the united states in con- 
gress assembled. 

The united states in congress assembled shall never engage 
in a war, nor grant letters of marque and reprisal in time 
of peace, nor enter into any treaties or alliances, nor coin 
money, nor regulate the value thereof, nor ascertain the sums 
and expenses necessary for the defence and welfare of the 
united states, or any of them, nor emit bills, nor borrow 
money on the credit of the united states, nor appropriate 
money, nor agree upon the number of vessels of war, to be 
built or purchased, or the number of land or sea forces to 
be raised, nor appoint a commander in chief of the army or 
navy, unless nine states assent to the same: nor shall a 
question on any other point, except for adjourning from day 
to day, be determined, unless by the votes of a majority of 
the united states in congress assembled. 

The Congress of the united states shall have power to 
adjourn to any time within the year, and to any place within 
the united states, so that no period of adjournment be for a 
longer duration than the space of six months, and shall pub- 
lish the Journal of their proceedings monthly, except such 
parts thereof relating to treaties, alliances or military opera- 
tions, as in their judgment require secrecy ; and the yeas and 



284 APPENDIX. 

nays of the delegates of each state on any question shall be 
entered on the Journal, when it is desired by any delegate; 
and the delegates of a state, or any of them, at his or their 
request shall be furnished with a transcript of the said Jour- 
nal, except such parts as are above excepted, to lay before 
the leofislatures of the several states. 

ARTICLE X. The committee of the states, or any nine of 
them, shall be authorized to execute, in the recess of con- 
gress, such of the powers of congress as the united states in 
congress assembled, by the consent of nine states, shall from 
time to time think expedient to vest them with ; provided 
that no power be delegated to the said committee, for the ex- 
ercise of whicli, by the articles of confederation, the voice of 
nine states in the congress of the united states assembled is 
requisite. 

ARTICLE XL Canada acceding to this confederation, and 
joining in the measures of the united states, shall be admitted 
into, and entitled to all the advantages of this union : but no 
other colony shall be admitted into the same, unless such ad- 
mission be agreed to by nine states. 

ARTICLE XII. All bills of credit emitted, monies bor- 
rowed and debts contracted, by or under the authority of 
congress, before the assembling of the united states, in pur- 
suance of the present confederation, shall be deemed and 
considered as a charge against the United States, for pay- 
ment and satisfaction whereof the said united states, and the 
public faith are hereby solemnly pledged. 

ARTICLE XIIL Every state shall abide by the determina- 
tions of the united states in congress assembled, on all ques- 
tions which by this confederation is submitted to them. 
And the Articles of this confederation shall be inviolably ob- 
served by every state, and the union shall be perpetual ; nor 
shall any alteration at any time hereafter be made in any of 



APPENDIX. 285 

them ; unless such alteration be agreed to in a congress of 
the united states, and be afterwards confirmed by the legis- 
latures of ever}' state. 

And Whereas it hath pleased the Great Governor of the 
World to incline the hearts of the legislatures we respectively 
represent in congress, to approve of, and to authorize us to 
ratify the said articles of confederation and perpetual union. 
Know Ye, that we the undersigned delegates, by virtue of 
the power and authority to us gievn for that purpose, do by 
these presents, in the name and in behalf of our respective 
constituents, fully and entirely ratify and. confirm each and 
every of the said articles of confederation and perpetual 
union, and all and singular the matters and things therein 
contained: And we do further solemnly plight and engage 
the faith of our respective constituents, that they shall abide 
by the determinations of the united states in congress assem- 
bled, on all questions, w^hicli by the said confederation are 
submitted to them. And that the articles thereof shall be in- 
violably observed by the states we respectively represent, and 
that the union shall be perpetual. In witness whereof we 
have hereunto set our hands in Congress. Done at Philadel- 
phia in the state of Pennsylvania the 9th Day of July in the 
Year of our Lord, 1778, and in the 3d year of the Independ- 
ence of America. 

On the part and behalf of the state of New Hampshire, 

Josiah Bartlett, 
John Wentworth, jun., 

August 8th, 1778. 

On the part and behalf of the state of Massachusetts-Bay, 

John Hancock, 
Samuel Adams, 
Elbridge Gerry, 
Francis Dana, 
James Lovell, 
Samuel Holten. 



286 APPENDIX. 

On the part and behalf of the state of Rhode-Island and 
Providence Plantations, 

William Ellery, 
Henry Marchant, 
John Collins. 

On the part and behalf of the state of Connecticut, 

Roger Sherman, 
Samuel Huntington, 
Oliver Wolcott, 
Titus Hosmer, 
Andrew Adam. 

On the part and behalf of the state of New York, 

Jas Duane, 
Fras Lewis, 
William Duer, 
GouV Morris. 

On the part and behalf of the state of New Jersej, Novem- 
ber 26th, 1778, 

Jn° Witherspoon, 
Nath' Scudder. 

On the part and behalf of the state of Pennsylvania, 

Rob* Morris, 
Daniel Roberdeau, 
Jon^ Bayard Smith, 
William Clingan, 
Joseph Reed, 

22d July, 1778. 

On the part and behalf of the state of Delaware, 

Tho. M'Kean, 

Feb. 12, 1779, 
John Dickinson, 

May 5, 1779, 
Nicholas Van Dyke. 



APPE:^rDix. 287 

On the part and behalf of the state of Maryland, 

John Hanson, 

March 1st, 1781, 
Daniel Carroll, 

March 1st, 1781. 

On the part and behalf of the state of Virginia, 

Richard Henry Lee, 
John Banister, 
Thomas Adams, 
Jn° Harrie, 
Francis Lightfoot Lee. 

On the part and behalf of the state of North-Carolina, 

John Penn, 

July 21st, 1778. 
Corns Harnett, 
Jn" 'Williams. 

On the part and behalf of the state of South-Carolina, 

Henry Laurens, 
William Henry Drayton, 
Jn° Matthews, 
Richd Hutson. 
Thos. Heyward, jun. 

On the part and behalf of the state of Georgia, 

Jn° Walton, 

24th July, 1778, 
. Edwd Telfair, 
Edw*^ Langworthy. 



CONSTITUTION 



OF THE 



UNITED STATES OF AMERICA. 



We the People of the United States, in order to form a more 
perfect Union, establish Justice, insure domestic Tran- 
quillity, provide for the common defence, promote the 
general Welfare, and secure the Blessings of Liberty to 
ourselves and our Posterity, do ordain and establish this 
Constitution for the United States of America. 

ARTICLE I. 

Section 1. All legislative Powers herein granted shall be 
vested in a Congress of the United States, which shall con- 
sist of a Senate and House of Representatives. 

Section 2. The House of Representatives shall be com- 
posed of Members chosen every second Year by the People of 
the several States, and the Electors in each State shall have 
the Qualifications requisite for Electors of the most numerous 
Branch of the State Legislature. 

No Person shall be a Representative who shall not have 
attained to the Age of twenty-five years, and been seven 
Years a Citizen of the United States, and who shall not, 
when elected, be an Inhabitant of that State in which he 
shall be chosen. 

[Representative^ and direct Taxes shall be apportioned 
among the several States which may be included within this 
Union, according to their respective Numbers, which shall 

288 



APPENDIX. 289 

be determined by adding to the whole Number of free Per- 
sons, inchiding those bound to Service for a Term of Years, 
and excluding Indians not taxed, three fifths of all other 
Persons.]* The actual Enumeration shall be made within 
three Years after the first Meeting of the Congress of the 
United States, and within every subsequent Term of ten 
Years, in such Manner as they shall by Law direct. The 
Number of EejDresentatives shall not exceed one for every 
thirty Thousand, but each State shall have at Least one 
Representative; and until such enumeration shall be made, 
the State of New Hampshire shall be entitled to chuse three, 
Massachusetts eight, Rhode Island and Providence Planta- 
tions one, Connecticut five, New York six, New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten, 
North Carolina five. South Carolina five, and Georgia three. 

When vacancies happen in the Representation from any 
State, the Executive Authority thereof shall issue Writs of 
Election to fill such Vacancies. 

The House of Representatives shall chuse their Speaker and 
other Officers ; and shall have the sole Power of Impeachment. 

SectiooS" 3. The Senate of the United States shall be 
composed of two Senators from each State, chosen by the 
Legislature thereof, for six Years; and each Senator shall 
have one Vote. 

Immediately after they shall be assembled in Consequence 
of the first Election, they shall be divided as equally as may 
be into three Classes. The Seats of the Senators of the first 
Class shall be vacated at the Expiration of the second Year, 
of the second Class at the Expiration of the fourth Year, 
and of the third Class at the Expiration of the sixth Year, 
so that one-third may be chosen every second Year ; and if 
Vacancies happen by Resignation, or otherwise, during the 
Recess of the Legislature of any State, the Executive thereof 



* The clause included in brackets was superseded by the 14th amendment, 
2nd section. 

13 



290 APPET^DIX. 

may make temporary Appointments until the next Meeting 
of the Legislature, which shall then fill such Vacancies. 

]Sr o Person shall be a Senator who shall not have attained to 
the Age of thirty Years, and been nine Years a Citizen of the 
United States, and who shall not, when elected, be an Inhab- 
itant of that State for which he shall be chosen. 

The Vice-President of the United States shall be President 
of the Senate, but shall have no Vote, unless they be equally 
divided. 

The Senate shall chuse their other Officers, and also a 
President pro tempore, in the Absence of the Vice-President, 
or when he shall exercise the Office of President of the 
United States. 

The Senate shall have the sole Power to try all Impeach- 
ments. When sitting for that Purpose, they shall be on 
Oath or Affirmation. When the President of the United 
States is tried, the Chief Justice shall j)reside : And no Per- 
son shall be convicted without the Concurrence of two-thirds 
of the Members present. 

Judgment in Cases of Impeachment shall not extend fur- 
tlier than to removal from Office, and Disqualification to hold 
and enjoy any office of honour. Trust or Profit under the 
United States ; but the Party convicted shall nevertheless be 
liable and subject to Indictment, Trial, Judgment and Pun- 
ishment, according to Law. 

Section 4. The Times, Places and Manner of holding 
Elections for Senators and Representatives, shall be pre- 
scribed in each State by the Legislature thereof; but the 
Congress may at any time by Law make or alter such Regu- 
lations, except as to the places of chusing Senators. 

The Congress shall assemble at least once in every Year, 
and such meeting shall be on the first Monday in December, 
unless they shall by Law appoint a different Day. 

Section 5. Each House shall be the Judge of the Elec- 
tions, Returns and Qualifications of its own Members, and a 
Majority of each shall constitute a Quorum to do Business ; 



APPENDIX. 291 

but a smaller Kiimber may adjourn from day to day, and may 
be authorized to compel the Attendance of absent Members, 
in such Manner, and under such Penalties as each House may 
provide. 

Each House may determine the Rules of its Proceedings, 
punish its Members for disorderly Behaviour, and, with the 
Concurrence of two-thirds, expel a Member. 

Each House shall keep a Journal of its Proceedings, and 
from time to time publish the same, excepting such Parts as 
may in their Judgment require Secrecy, and the Yeas and 
Nays of the Members of either House on any question shall, 
at the desire of one-fifth of those Present, be entered on the 
Journal. 

Neither House, during the session of Congress, shall, with- 
out the Consent of the other, adjourn for more than three 
days, nor to any other Place than that in which the two 
Houses shall be sitting. 

Section 6. The Senators and Representatives shall receive 
a Compensation for their Services, to be ascertained by Law, 
and paid out of the Treasury of the United States. They 
shall in all Cases, except Treason, Felony and Breach of the 
Peace, be privileged from Arrest during their Attendance at 
the Session of their respective Houses, and in going to and 
returning from the same ; and for any Speech or Debate in 
either House, they shall not be questioned in any other Place. 

No Senator or Representative shall, during the Time for 
which he w^as elected, be appointed to any civil Office under 
the Authority of the United States, which shall have been 
created, or the Emoluments whereof shall have been encreased 
during such time ; and no Person holding any Office under 
the United States shall be a Member of either House during 
his Continuance in Office. 

Section 7. All Bills for raising Revenue shall originate in 
the House of Representatives; but the Senate may propose or 
concur with Amendments as on other Bills. 

Every Bill which shall have i)assed the House of Repre- 



292 APPENDIX. 

sentatives and the Senate, shall, before it become a Law, be 
presented to the President of the United States ; If he approve 
he shall sign it, but if not he shall return it, with his Objec- 
tions, to that House in which it shall have originated, who 
shall enter the Objections at large on their Journal, and pro- 
ceed to reconsider it. If after such Reconsideration two- 
thirds of that House shall agree to pass the Bill, it shall be 
sent, together with the Objections, to the other House, by 
which it shall likewise be reconsidered, and if approved by 
two-thirds of that House, it shall become a Law. But in all 
such Cases the Votes of both Houses shall be determined by 
Yeas and Kays, and the Names of the Persons voting for and 
against the Bill shall be entered on the Journal of each House 
respectively. If any Bill shall not be returned by the Presi- 
dent within ten Days (Sundays excepted) after it shall have 
been presented to him, the Same shall be a law, in like Man- 
ner as if he had signed it, unless the Congress by their Ad- 
journment prevent its Return, in which Case it shall not be a 
Law. 

Every Order, Resolution, or Yote to which the Concurrence 
of the Senate and House of Representatives may be necessary 
(except on a question of Adjournment) shall be presented to 
the President of the United States; and before the Same shall 
take Effect, shall be approved by him, or being disapproved 
by him, shall be repassed by two-thirds of the Senate and 
House of Representatives, according to the Rules and Limita- 
tions prescribed in the Case of a Bill. 

Section 8. The Congress shall have Power 

To lay and collect Taxes, Duties, Imposts and Excises, Jto^ 
pay the Debts and provide for the common Defence and gen- 
.eraLWelfare of the United States; but all Duties, Imposts 
and Excises shall be uniform throughout the United States ; 

To borrow Money on the credit of the United States ; 

To regulate Commerce with foreign Nations and among 
the several States, and with the Indian tribes ; 

To establish an uniform Rule of Naturalization, and uniform 



APPEIS-DIX. 293 

Laws on the subject of Bankruptcies throughout the United 
States ; 

To coin Money, regulate the Value thereof, and of foreign 
Coin, and fix the Standard of "Weights and Measures ; 

To provide for the Punishment of counterfeiting the Securi- 
ties and current Coin of the United States ; 

To establish Post Offices and post Roads ; 

To j)roii^ote the jDrogress of Science and useful Arts, by 
securing for limited Times to Authors and Inventors the ex- 
clusive Right to their respective "Writings and Discoveries ; 

To constitute Tribunals inferior to the supreme Court ; 

To define and punish Piracies and Felonies committed on 
the high Seas, and Offences against the Law of Nations ; 

To declare War, grant Letters of Marque and Reprisal, and 
make Rules concerning Caj)tures on Land and "Water; 

To raise and support Armies, but no Appropriation of 
Money to that Use shall be for a longer Term than two Years ; 

To provide and maintain a Navy ; 

To make Rules for the Government and Regulation of the 
land and naval Forces ; 

To provide for calling forth the Militia to execute the Laws 
of the Union, suppress Insurrections and repel Invasions ; 

To provide for organizing, arming, and disciplining the 
Militia, and for governing such Part of them as may be em- 
ployed in the Service of the United States, reserving to the 
States respectively, the Appointment of the Officers, and the 
Authority of training the Militia according to the Discipline 
prescribed by Congress ; 

To exercise exclusive Legislation in all Cases whatsoever, 
over such District (not exceeding ten Miles square) as may, 
by Cession of particular States, and the Acceptance of Con- 
gress, become the Seat of the Government of the United 
States, and to exercise like Authority over all Places pur- 
chased by the consent of the Legislature of the State in which 
the Same shall be, for the Erection of Forts, Magazines, Arse- 
nals, Dock- Yards, and other needful Buildings ; — And 



294 APPENDIX. 

To make all Laws whicli shall be necessary and proper for 
carrying into Execution tlie foregoing Powers, and all other 
PoM'Crs vested by this Constitution in the Government of the 
United States, or in any Department or Officer thereof. 

Section 9. The Migration or Importation of such Persons 
as any of the States now existing shall think proper to admit, 
shall not be prohibited by the Congress prior to the Year one 
thousand eight hundred and eight, but a Tax or Duty may be 
imposed on such Importation, not exceeding ten dollars for 
each Person. 

The Privilege of the "Writ of Habeas Corpus shall not be 
suspended, unless when in cases of Rebellion or Invasion the 
public Safety may require it. 

No bill of Attainder or ex post facto Law shall be passed. 

No Capitation, or other direct. Tax shall be laid, unless in 
Proportion to the Census or Enumeration herein before 
directed to be taken. 

No Tax or Duty shall be laid on Articles exported from any 
State. 

No Preference shall be given by any Regulation of Com- 
merce or Revenue to the Ports of one State over those of any 
another : nor shall Vessels bound to, or from, one State, be 
obliged to enter, clear, or pay Duties in another. 

No Money shall be drawn from the Treasury, but in Conse- 
quence of Appropriations made by Law ; and a regular State- 
ment and Account of the Receipts and Expenditures of all pub- 
lic Money shall be published from time to time. 

No Title of Nobility shall be granted by the United States : 
And no Person holding any Office of Profit or Trust under 
them, shall, Avithout the Consent of the Congress, accept of 
any present, Emolument, Office, or Title, of any kind what- 
ever, from any King, Prince, or foreign State. 

Section. 10. No State shall enter into any Treaty, Alliance, 
or Confederation ; grant Letters of Marque and Reprisal ; 
coin Money ; emit Bills of Credit ; make any Thing but gold 
and silver Coin a Tender in Payment of Debts ; pass any Bill 



APPEJS^DIX. 29o 

of Attainder, ex post facto Law, or Law impairing tlie Obli- 
gatiou of Contracts, or grant any Title of Nobility. 

E"o State shall, without the consent of the Congress, lay any 
Imposts or Duties on Imports or Exports, exce^Dt what may be 
absolutely necessary for executing it's inspection Laws : and 
the net Produce of all Duties and Imposts, laid by any State 
on Imports or Exports, shall be for the Use of the Treasury of 
the United States ; and all such Laws shall be subject to the 
Revision and Controul of the Congress. 

No State shall, without the Consent of Congress, lay any 
Duty of Tonnage, keep Troops, or Ships of War in time of 
Peace, enter into any Agreement or Compact with another 
State, or with a foreign Power, or engage in War, unless 
actually invaded, or in such imminent Danger as will not 
admit of Delay. 

ARTICLE II. 

Sectiok 1. The executive Power shall be vested in a Presi- 
dent of the United States of America. " He shall hold his 
office during the Term of four Years, and, together with the 
Vice President, chosen for the same Term, be elected, as fol- 
lows 

Each State shall appoint, in such Manner as the Legislature 
thereof may direct, a Number of Electors, equal to the whole 
Number of Senators and Representatives to which the State 
may be entitled in the Congress : but no Senator or Represen- 
tative, or Person holding an Office of Trust or Profit under 
the United States, shall be appointed an Elector. 

[* The Electors shall meet in their respective States, and vote by Ballot for 
two Persons, of whom one at least shall not be an Inhabitant of the same 
State with themselves. And they shall make a List of all the Persons voted 
for, and of the Number of Votes for each ; which list they shall sign and cer- 
tify, and transmit sealed to the Seat of the Government of the United States 
directed to the President of the Senate. The President of the Senate shall, in 
the Presence of the Senate and House of Representatives, open all the Certifi- 



* This clause within brackets has been superseded and annulled by the 12tli 
amendment. 



296 APPENDIX. 

cates, and the Votes shall then be counted. The Person having the greatest 
number of Votes shall be the President, if such Number be a Majority of the 
whole Number of Electors appointed ; and if there be more than one who 
have such Majority and have an equal Number of Votes, then the House of 
Representatives shall immediately chuse by Ballot one of them for President ; 
and if no Person have a Majority, then from the five highest on the List the 
said House shall in like manner chuse the President. But in chusing the 
President, the Votes shall be taken by States, the Representation from each 
State having one Vote ; A Quorum for this Purpose shall consist of a Member 
or Members from two-thirds of the States, and a Majority of all the States 
shall be necessary to a Choice. In every Case, after the Choice of the Presi- 
dent, the Person having the greatest Number of Votes of the Electors shall be 
the Vice President. But if there should remain two or more who have equal 
Votes, the Senate shall chuse from them by Ballot the Vice President.] 

The Congress may determine the Time of chusing the Elec- 
tors, and the Day on which they shall give their Votes; which 
Day shall be the same throughout the United States. 

No Person except a natural born Citizen, or a Citizen of the 
United States, at the time of the Adoption of this Constitu- 
tion, shall be eligible to the Office of President; neither shall 
any Person be eligible to that Office who shall not have 
attained to the Age of thirty five Years, and been fourteen 
Years a Kesident within the United States. 

In Case of the Removal of the President from Office, or of his 
Death, Resignation, or Inability to discharge the Powers and 
Duties of the said Office, the same shall devolve on the Vice 
President, and the Congress may by Law provide for the Case 
of Removal, Death, Resignation, or Inability, both of the 
President and Vice President, declaring what Officer shall 
then act as President, and such Officer shall act accordingly, 
until the Disability be removed, or a President shall be 
elected. 

The President shall, at stated Times, receive for his ser- 
vices, a Compensation, which shall neither be increased nor 
diminished during the Period for which he shall have been 
elected, and he shall not receive within that Period any 
other Emolument from the United States, or any of them. 

Before he enter on the Execution of his Office, he shall 
take the following Oath or Affirmation : — 



APPENDIX. 297 

" I do solemnly swear (or affirm) that I will faithfully exe- 
*' cute the Office of President of the United States, and will 
" to the best of my Ability, preserve, protect and defend the 
*' Constitution of the United States." 

Section 2. The President shall be Commander in Chief 
of the Army and Navy of the United States, and of the 
Militia of the several States, when called into the actual Ser- 
vice of the United States; he may require the Opinion, in 
writing, of the principal Officer in each of the executive De- 
partments, upon any Subject relating to the Duties of their 
respective Offices, and he shall have Power to grant Ke- 
prieves and Pardons for Offences against the United States, 
except in Cases of Impeachment. 

He shall have Power, by and with the Advice and Consent 
of the Senate, to make Treaties, provided two thirds of the 
Senators present concur; and he shall nominate, and by and 
with the Advice and Consent of the Senate, shall appoint 
Ambassadors, other public Ministers and Consuls, Judges of 
the supreme Court, and all other Officers of the United 
States, whose Appointments are not herein otherwise pro- 
vided for, and which shall be established by Law : but the 
Congress may by Law vest the Appointment of such inferior 
Officers, as they think j)roper, in the President alone, in the 
Courts of Law, or in the Heads of Departments. 

The President shall have Power to fill up all Vacancies 
that may happen during the Recess of the Senate, by grant- 
ing Commissions which shall expire at the End of their next 
Session. 

Section 3. He shall from time to time give to the Con- 
gress Information of the State of 4he Union, and recommend 
to their Consideration such Measures as he shall judge neces- 
sary and expedient; he may, on extraordinary Occasions, 
convene both Houses, or either of them, and in Case of Dis- 
agreement between them, with respect to the Time of Ad- 
journment, he may adjourn them to such Time as he shall 
think proper ; he shall receive Ambassadors and other public 
13* 



298 APPENDIX. 

Ministers ; he shall take Care that the Laws be faithfully ex- 
ecuted, and shall Commission all the Officers of the United 
States. 

Section 4. The President, Vice President and all civil 
Officers of the United States, shall be removed from Office on 
Impeachment for, and Conviction of, Treason, Bribery, or 
other high Crimes and Misdemeanors. 

ARTICLE III. 

Section 1. The judicial Povt^er of the United States, shall 
"^ be vested in one supreme Court, and in such inferior Courts 
■.as the Congress may from time to time ordain and establish. 
The Judges, both of the supreme and inferior Courts, shall 
hold their Offices during good Behavior, and shall, at stated 
Times, receive for their Services, a Compensation, which 
shall not be diminished during their Continuance in Office. 

Section 2. The judicial Power shall extend to all Cases, 
in Law and Equity, arising under this Constitution, the 
Laws of the United States, and Treaties made, or which 
shall be made, under their Authority ; — to all Cases affecting 
Ambassadors, other public Ministers, and Consuls; — to all 
Cases of admiralty and maritime Jurisdiction; — to Contro- 
versies to which the United States shall be a Party; — to Con- 
troversies between two or more States ; — between a State and 
Citizens of another State; — between Citizens of different 
States ; — between Citizens of the same State claiming Lands 
under Grants of different States, and between a State, or the 
Citizens thereof, and foreign States, Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Ministers 
and Consuls, and those in which a State shall be Party, 
the supreme Court shall have original Jurisdiction. In all 
the other Cases before mentioned, the supreme Court shall 
have appellate Jurisdiction, both as to Law and Fact, with 
such Exceptions, and under such Regulations as the Con- 
gress shall make. 



APPE]^DIX. 299 

The Trial of all Crimes, except in Cases of Impeachment, 
shall be by Jury, and such Trial shall be held in the State 
where the said Crimes shall have been committed ; but when 
not committed within any State, the Trial shall be at such 
Place or Places as the Congress may by Law have directed. 

Section 3. Treason against the United States shall con- 
sist only in levying War against tliem, or in adhering to 
their Enemies, giving them Aid and Comfort. No Person 
shall be convicted of Treason unless on the Testimony of two 
Witnesses to the same overt Act, or on Confession in open 
Court. 

The Congress shall have Power to declare the Punishment 
of Treason, but no Attainder of Treason shaU work Corrup- 
tion of Blood, or Forfeiture except during the Life of the 
Person attainted. 

ARTICLE ly. 

Section 1. Full Faith and Credit shall be given in each 
State to the public Acts, Records, and judicial Proceedings 
of every other State. And the Congress may by general 
Laws prescribe tlie Manner in which such Acts, Records and 
Proceedings shall be proved, and the Effect thereof. 

Section 2. The Citizens of each State shall be entitled to 
all Privileges and Immunities of Citizens in the several 
States. 

A Person charged in any State with Treason, Felony, or 
other Crime, who shall flee from Justice, and be found in an- 
other State, shall on Demand of the executive Authority of 
the State from which he fled, be delivered up, to be removed 
to the State having Jurisdiction of the Crime. 

No Person held to Service or Labour in one State, under the 
Laws thereof, escaping into another, shall, in Consequence of 
any Law or Regulation therein, be discharged from such 
Service or Labour, but shall be delivered up on Claim of the 
Party to whom such Service or Labour may be due. 



300 APPENDIX. 

Section 3. New States may be admitted by the Congress 
into this Union ; but no new State shall be formed or erected 
within the Jurisdiction of any other State; nor any State 
be formed by the Junction of two or more States, or Parts of 
States, without the Consent of the Legislatures of the States 
concerned as well as of the Congress. 

The Congress shall have Power to dispose of and make all 
needful Kules and Regulations respecting the Territory or 
other Property belonging to the United States ; and nothing 
in this Constitution shall be so construed as to Prejudice any 
Claims of the United States, or of any particular State. 

Section 4. The United States shall guarantee to every 
State in this Union a Republican Form of Government, and 
shall protect each of them against Invasion, and on Applica- 
tion of the Legislature, or of the Executive (when the Legis- 
lature cannot be convened) against domestic Violence. 

ARTICLE V. 

The Congress, whenever two thirds of both Houses shall 
deem it necessary, shall propose Amendments to this Consti- 
tution, or, on the Application of the Legislatures of two thirds 
of the several States, shall call a Convention for proj)osing 
Amendments, which, in either Case, shall be valid to all In- 
tents and Purposes, as Part of this Constitution, when ratified 
by the Legislatures of three fourths of the several States, or 
by Conventions in three fourths thereof, as the one or the 
other Mode of Ratification may be proposed by the Congress; 
Provided that no Amendment which may be made prior to 
the Year one thousand eight hundred and eight shall in any 
Manner affect the first and fourth Clauses in the Mnth Section 
of the first Article, and that no State, without its Consent, 
shall be deprived of its equal Suffrage in the Senate. 

ARTICLE VI. 

All Debts contracted and Engagements entered into, before 
the Adoption of this Constitution, shall be as valid against 



APPENDIX. 301 

the United States under this Constitution, as under the Con- 
federation. 

This Constitution, and the Laws of the United States which 
shall be made in Pursuance thereof ; and all Treaties made, or 
which shall be made, under the authority of the United States, 
shall be the supreme Law of the Land; and the Judges in 
every State shall be bound thereby, any Thing in the Consti- 
tution or Laws of any State to the Contrary notwithstanding. 

The Senators and Representatives before mentioned, and 
the Members of the several State Legislatures, and all execu- 
tive and judicial Officers, both of the United States and of the 
several States, shall be bound by Oath or Affirmation, to sup- 
port this Constitution; but no religious Test shall ever be 
required as a Qualification to any Office or public Trust under 
the United States. 

ARTICLE yn. 

The Ratification of the Conventions of nine States, shall be^ 
sufficient for the Establishment of this Constitution between 
the States so ratifying the Same. 

Done in Convention by the Unanimous Consent of the States 
present the Seventeenth Day of September in the Year of 
our Lord one thousand seven hundred and Eighty seven 
and of the Independence of the United States of America 
the Twelfth In Witness whereof We have hereunto 
subscribed our names, 

GEO WASHmaTOE"— 
Presidt and dejputy from Virginia, 



302 



APPENDIX. 



NEW HAMPSHIRE. 
John Langdon, Nicholas Gilman, 

MASSACHUSETTS. 
Nathaniel Gorham, Rufus King. 

CONNECTICUT. 
Wm. Saml. Johnson, Roger Sherman. 



Alexander Hamilton. 



Wil: Livingston, 
Wm. Paterson, 

B. Franklin, 
RoBT. Morris, 
Tho: Fitzsimons, 
James Wilson, 

Geo: Read, 
John Dickinson, 
Jaco: Broom. 

James M' Henry, 
Danl Carroll. 

John Blair, 

Wm. Blount, 
Hu. Williamson, 



NEW YORK. 

NEW JERSEY. 

David Brearley, 
JoNA. Dayton. 

PENNSYLVANIA. 

Thomas Mifflin, 
Geo: Clymer, 
Jared Ingersoll, 
Gouv: Morris. 

DELAWARE. 

Gunning Bedford, Jun'r, 
Richard Bassett, 

MARYLAND. 

Dan: of St. Thos. Jenifer, 

VIRGINIA. 

James Madison, Jr., 

NORTH CAROLINA. 

Rich'd Dobbs Spaight, 



SOUTH CAROLINA. 

Charles Cotesworth Pinckney 
Pierce Butler. 
GEORGIA. 
William Few, Abr. Baldwin. 



J. Rutledge, 
Charles Pinckney, 



Attest : 



WILLIAM JACKSON, Secretary. 



ARTICLES 

m ADDITION TO AND AMENDMENT OF 

THE CONSTITUTION 

OP THE 

UNITED STATES OF AMEKICA. 

Proposed iy Congress^ and ratified ty the Legislatures of the 
several States, pursuant to the fifth article of the original 
Constitution, 

(ARTICLE I.) 

Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof ; or abridg- 
ing the freedom of sjDeech, or of the press, or the right of the 
people peaceably to assemble, and to petition the Government 
for a redress of grievances. 

(ARTICLE n.) 

A well regulated Militia, being necessary to the senritcy of 
a free State, the right of the people to keep and bear Arms, 
shall not be infringed. 

(ARTICLE III.) 

No Soldier shall, in time of peace be quartered in any 
house, without the consent of the Owner, nor in time of war, 
but in a manner to be prescribed by law. 

(ARTICLE IV.) 
The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and 
seizures, shall not be violated, and no Warrants shall issue, 

303 



304 APPENDIX. 

but upon probable cause, supported by Oath or affirmation, 
and particularly describing the place to be searched, and the 
persons or things to be seized. 

(ARTICLE V.) 

Ko person shall be held to answer for a capital, or other- 
wise infamous crime, unless on a presentment or indictment 
of a Grand Jury, except in cases arising in the land or naval 
forces, or in the Militia, when in actual service in time of 
War or public danger; nor shall any person be subject for 
the same offence to be twice put in jeopardy of life or limb ; 
nor shall be compelled in any 'Criminal Case to be a witness 
against himself, nor be deprived of life, liberty, or property, 
without due process of law ; nor shall private property be 
taken for public use, without just compensation. 

(ARTICLE VI.) 
In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of the 
State and district wherein the crime shall have been com- 
mitted, which district shall have been previously ascertained 
by law, and to be informed of the nature and cause of the 
accusation ; to be confronted with tlie witnesses against him ; 
to have Compulsory process for obtaining witnesses in his 
favour, and to have the Assistance of Counsel for his de- 
fence. 

(ARTICLE VII.) 

In Suits at common law, where the value in controversy 
shall exceed twenty dollars, the right of trial by jury shall 
be preserved, and no fact tried by a jury shall be otherwise 
re-examined in any Court of the United States, than accord" 
ing to the rules of the common law. 

(ARTICLE VIIL) 
Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted. 



APPENDIX. 305 

(ARTICLE IX.) 

The enumeration in the Constitution, of certain rights," 
ehall not be construed to deny or disparage others retained 
by the people. 

(ARTICLE X.) 

The powers not delegated to the United States by the Con- 
stitution, nor prohibited by it to the States, are reserved to 
the States respectively, or to the people. 

ARTICLE XI. 

The Judicial power of the United States shall not be con- 
strue.d to extend to any suit in law or equity, commenced or 
prosecuted against one of the United States by Citizens of 
another State, or by Citizens or Subjects of any Foreign 
State. 

* ARTICLE Xd. 

The Electors shall nieet in their respective states, and vote 
by ballot for President and Vice-President, one of whom, at 
least, shall not be an inhabitant of the same state with them- 
selves ; they shall name in their ballots the j)erson voted for 
as President, and in distinct ballots the person voted for as 
Vice-President, and they shall make distinct lists of all per- 
sons voted for as President, and of all persons voted for as 
Vice-President, and of the number of votes for each, which 
lists they shall sign and certify, and transmit sealed to the 
seat of the government of the United States, directed to the 
President of the Senate ; — The President of the Senate shall, 
in |)resence of the Senate and House of Representatives, open 
all the certificates and the votes shall then be counted; — The 
person having the greatest number of votes for President, 
shall be the President, if such number be a majority of the 
whole number of Electors appointed ; and if no person have 

* In substitution of part of § 1, Article 2, of Constitution, as originally 
adopted. 



306 APPEI^DIX. 

such majority, then from the persons having the highest 
numbers not exceeding three on the list of those voted for as 
President, the House of Representatives shall choose imme- 
diately, by ballot, the President. But in choosing the Presi- 
dent, the votes shall be taken by states, the representation 
from each state having one vote ; a quorum for this purpose 
shall consist of a member or members from two-thirds of the 
states, and a majority of all the states shall be necessary to a 
choice. And if the House of Representatives shall not 
choose a President whenever the right of choice shall de- 
volve upon them, before the fourth day of March next follow- 
ing, then the Vice-President shall act as President, as in the 
case of the death or other constitutional disability of the 
President. The person having the greatest number of votes 
as Vice-President, shall be the Vice-President, if such num- 
ber be a majority of the whole number of Electors appointed, 
and if no person have a majority, then from the two highest 
numbers on the list, the Senate shall choose the Vice-Presi- 
dent ; a quorum for the purpose shall consist of two-thirds of 
the whole number of Senators, and a majority of the whole 
number shall be necessary to. a choice. But no person con- 
stitutionally ineligible to the office of President shall ,be 
eligible to that of Vice-President of the United States. 

ARTICLE Xm. 

Section 1. Neither slavery nor involuntary servitude, ex- 
cept as a punishment for crime, whereof the party shall have 
been duly convicted, shall exist within the United States, or 
any place subject to their jurisdiction. 

Section 2. Congress shall "have power to enforce this arti- 
cle by appro]3riate legislation. 

ARTICLE XIV. 

Section 1. All persons born or naturalized in the United 
States and subject to the jurisdiction thereof, are citizens of 
the United States, and of the State wherein they reside. No 



APPENDIX. 307 

state shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States ; nor 
shall any State deprive any person of life, liberty or property 
without due process of law, nor deny to any person within its 
jurisdiction the equal protection of the laws. 

Section 2. Representatives shall be apportioned among the 
several States according to their respective numbers, count- 
ing the whole number of persons in each State, excluding 
Indians not taxed ; but when the right to vote at any election 
for the choice of electors for President and Vice-President of 
the United States, Representatives in Congress, the executive 
and judicial officers of a State or the members of the Legisla- 
ture thereof, is denied to any of the male inhabitants of such 
State, being twenty-one years of age and citizens of the 
United States, or in any way abridged, except for jDarticipa- 
tion in rebellion or other crimes, the basis of representation 
therein shall be reduced in the proportion which the number 
of such male citizens shall bear to the whole number of male 
citizens twenty-one years of age in such State. 

Section 3. No person shall be a Senator or Representa- 
tive in Congress or elector of President and Vice-President, 
or hold any office civil or military, under the United States 
or under any State who, having previously taken an oath 
as a Member of Congress, or as an officer of the United States, 
or as a member of any State Legislature, or as an executive or 
judicial officer of any State, to sujDport the Constitution of 
the United States, shall ha.ve engaged in insurrection or 
rebellion against the same, or given aid or comfort to the 
enemies thereof. But Congress may, by a vote of two-thirds 
of each house, remove such disability. 

Section 4. The validity of the public debt of the United 
States authorized by law, including debts incurred for pay- 
ment of pensions and bounties for services in suppressing in- 
surrection or rebellion, shall not be questioned. But neither 
the United States nor any State shall assume or pay any debt 
or obligation incurred in the aid of insurrection or rebellion 



308 • ^ APPENDIX. 

against the United States, or any loss or emancipation of any- 
slave, but such debts, obligations and claims shall be held 
illegal and void. 

Section 5. The Congress shall have the power to enforce, 
by appropriate legislation, the provisions of this article. 

ARTICLE XV. 

Section 1. The right of citizens of the United States to 
vote, shall not be denied or abridged by the United States, 
or by any State, on account of race, color or previous con- 
dition of servitude. 

Section 2. Congress shall have power to enforce this arti- 
cle by appropriate legislation. 



INDEX. 

Compiled by L. E. Jones. 



Abolitionist party, origin, 176; acces- 
sion of strength, 180. 

Adams, J., his casting vote gives Prest. 
power of removal, 151; adm. of, 157- 
159; his breach with Hamilton, 160. 

Adams, J. Q., adm. of, 166-168. 

Adioiunment of Congress, 36 ; by the 
Prest., 74. 

Administration, of Washington, 147- 
157; Adams, 157-159; Jefferson, 159- 
161; Madison, 161-163; Monroe, 163- 
166; J. Q. Adams, 166-168; Jackson, 
168-175; Van Buren, 175-176; Harri- 
son, and Tyler, 177-179; Polk, 179- 
181; Tavlor and Fillmore, 182-186; 
Pierce, 186-190; Bnchanan, 190-196; 
Lincoln, 196-200; Johnson, 200-205; 
Grant, 205-216; Hayes, 216-220. 

Admiralty powers under Arts, of Con- 
fed., 10; power of Congress. 45 : jnris- 
diction of Sup. Ct., 102-103, 106; of 
r. S. courts, 107-108, 126. See also 
Prizes. 

Admission of States, 17, 19; submis- 
sion of their constitutions to Con- 
gress, 251. 

Adoption of Const., opposition to. 14, 
148, 149. 

Advisory Boards for legislatures, 264- 
265. 

Age of Congressmen, 28 ; of Senators, 
33; of Prest., 68. 

Agricultural statistics, 88. See also 
Granger. 

Agriculture, Dept. of, 84; its duties, 
94-95. 

Alabama secedes, 194. 

Alabama settlement with England, 207. 

Alaska, purchase of, 115. 

Aldermen, defects of system, 272; 
should be made responsible. 274. 

Alien laws, 48-49, 141, 158-159. 

Aliens, power of Prest. to protect, 83; 
suits in which they are parties, 103, 
109-110. 

Alliance. See Treaty. 

Ambassadors, Continental Congress to 
send and to receive, 10; under Const, 
appoiiited by Prest., 73; suits affect- 
ing, 102, 103, 126. 



Amendments to Const., 64, 66, 103, 110, 
117-124, 160, 202, 205; how made, 17- 
18; their provisions, 18-23; Sec. of 
State to give notice, 85; they form 
a bill of rights, 135-144; those pro- 
posed by Madison, 151-152; defeated, 
167; text of the 15 adopted, 303-308. 

Amendments to State constitutions, 
provisions for, 253. 

American party. /See Know-Nothings. 

American register of ships, 237. 

Amnesty power taken from the Prest., 
203. 

Anti-Federalists, 148-149. 

Anti-Masonic party, 172. 

Anti-slavery. 6'ee Abolitionist; Slavery. 

Appellate iurisdiction ofSup. Ct., 103, 
126-132; of U. S. courts, 121-122; of 
Circuit courts, 1-33. 

Appendix, 275-308. 

Appointing power of Prest., 7-3-74, 76- 
78, 82-84; 89, 90, 92, 93, 94, 126, 151; 
share of Senate in, 34; how used 
since adm. of Jackson, 227; its 
evils, 227-228; efforts at reform, 228- 
231. See rt/^fo Civil service; Removal; 
Spoils; Tenure-of-office. 

Appointment of State officers, 251-2-52, 
254-257; of judges, 254-256. 

Apportionment of Congressmen, 28-31, 
123. 

Appraisal of imports, Treas. Dept. to 
report to Congress rules for, 87. 

Appropriations, bills for, to originate 
in House of Rep., 36-37; money to 
be paid only by, 51; Treas. Dept. to 
keep account of, 85. 

Arkansas, hesitates about secession, 
194; secedes, 197. 

Armies, power of Congress to raise, 
45 ; appropriations for, limited to 
two j'ears, 45, 46; power of States to 
maintain, limited, 56. See also Mili- 
tia. 

Arms, right of people to bear, 19, 140- 
141; does not apply to concealed 
weapons, 117-118. 

Army, power of Continental Congress 
over, 11; of Congress over, 46; of 
Pi-est. over, 203; U. S. does not need 
309 



310 



Il^DEX. 



a standing, 222. See also Militia; 
Volunteer; War Dept. 

Arsenals, jurisdiction of Congress over, 
47. 

Arthur, C. A., accession to presidency, 
80-81, 220. 

Articles of Confederation, adoption, 
9; powers, 10; defects, ll-i;i, 27, 
96; differences from Const., 143-144; 
their weakness, 146; their text, 
27.5-287. 

Ashburton treat}"-, 178. 

Assassination of Lincoln, 200 ; of Gar- 
field, 2i0. 

Assembling, people's right of, 19, 117, 
140. 

Assessments, attempts to limit ratio, 
272-273. See also Political assess- 
ments. 

Attainder, bill of, forbidden, 47, 50-51, 
52, 111. 

Attorney-General, 84; his duties, 90- 
92. 

Bail, excessive, prohibited by Const, 
amend., 21, 122, 142. 

Ballot, Prest. and Vice-Prest. to be 
chosen by, 66; its introduction in 
voting, 254. 

Bank of U. S., disagreement as to its 
incorporation, 155; reorganization 
in 1811, 103; the failure to re- 
charter it, 170-171 ; Jackson removes 
TJ. S. deposits from, 172. See also 
Fiscal. 

Bank notes. See Paper money. 

Banking corporations, influence upon 
State legislation, 257. 

Bankruptcy, power of Natl. Govt, 
over, 16; of Congress, over, 42; writs 
of injunction in, 132. 

Banks, statistics of, 88. /See a^so Na- 
tional banks; State banks. 

Battle of New Orleans, 162-163. 

Bell, J., nominated as Prest. by Const. 
Union party, 193. 

Biennial sessions of State legislatures, 
264-266. 

Bill of attainder. See Attainder. 

Bill of rights in amends, to Const., 
135-144. 

Bills of credit. States prohibited from 
issuing, 52. 

Bimetallism, 242-244. 

Blair, F. P., Jr., nominated as Vice- 
Prest. 205. 

Bland silver bill, 242. 

Blockades, power of Prest. to insti- 
tute, 83. 

Bonds of TJ. S. not subject to taxation 
b}' States, 39; nail, banks required 
to invest ciipital in, 198. See also 
Debt. 

Bosses, political, 219, 265. 



Bounaaries between the States, 10. 

Bounty lands, 94, 115. 

Breckenridge, J. C, elected Vice- 
Prest., 19b; nominated as Prest., 193. 

Bribery, impeachment for, 75; provis- 
ions m State constitutions against, 
253. 

British orders in council, 161. 

Brookljai, frequent change of public 
improvement laws, 273. 

Brooks, P. S., assault upon Sumner, 
189. 

Brown, B. G., nominated as Vice- 
Prest., 208. 

Buchanan, J., adm. of, 190-196. 

Bureau. ,5^6 Census; Education; Freed- 
men's; Mint; Statistics. 

Burr, A., contest ^^'Ith Jefferson for 
presidency, 159-160; duel with Ham- 
ilton, 160. 

Butler nominated as Vice-Prest., 181. 

Butler, B. F., declares slaves to be 
contrabands of war, 197. 

Cabinet, 83-84; that of Tyler resigns, 
177-178; propriety of giving mem- 
bers seats in Congress, 247-249. 

Calhoun, J. C, elected Vice-Prest., 
167, 168; advocacy of nullification, 
170. 

California, cession to TJ. S., 180; ad- 
mission as a State, 183-184; its ac- 
tion on Chinese question, 240. 

Canal commissioners of States, 253. 

Capital of TJ. S., its location, 152, 153, 
155. 

Capitation tax proportional to popula- 
tion, 51. 

Captures. See Prizes. 

Carpet-baggers, 206. 

Carrying trade, cfibrts to restore, 237- 
238. 

Cass, L., nominated for presidency, 
181. 

Caucus, origin, 159 ; its evils, 232, 265 ; 
how to remedj^ them, 235. 

Censorship of the press, 1.37. 

Census, provision for taking, 28-31, 

Census Bureau, 93-94. 

Centralization of power, 156, 153, 226. 

Charter governments of the colonies, 3. 

Charters, colonial, 2, 3. 

Chase, S. P., 43. 

Chief Justice presides in impeachment 
of Prest., 82. 

Chinese question, 239-241. 

Circuit courts established by Congress, 
44; appeals to Sup. Ct. from, 126, 127; 
writs of ne exeat by judges of, 132. 

Citizens of the different States to be 
on an equality. 18; to be entitled to 
privileges of other States, 57-58, 60, 
113-114; suits in which they are par- 
ties, 103, 104, 105, 106, 109, 110; juris- 



n^DEX. 



311 



diction of Sup. Ct. in cases between, 
103, 105; entitled to equal piotection 
of States, 122-123; their rights i^ro- 
tected more by States than bynatl. 
govt., 2o0; their rights of voting at 
all elections, 251-252. 

Citizenship of Congressmen, 28; of Sen- 
ators, .3:3; defined, 113-114; freedmen 
admitted to, 202; qualifications for, 
254. ■See' also Naturalization. 

City, ^e-e Municipal. 

Civil judgments in one State binding 
in others, 59. 

Civil law, Its administration chiefly in 
control of States, 250. 

Civil rights, 22, 122-123, 124; passage 
of bill, 202. 

Civil service, evils of, iv-v, viii; re- 
forms in, 77-78, 228-231, 235. 265. 
See also Appointing; Office-holders; 
Removals; Spoils. 

Civil suits, right of jury in, secured by 
Const, amend., 21. 

Civil War, 196-200; settlement of is- 
sues raised by it, iv-vi; Const, 
amends, caused by, 22; settled ques- 
tion of State riglrts, 26; a pretext for 
protective duties, 235-236. 

Claims of and against U. S. tobe ad- 
justed by Treasury Dept., 85; inva- 
lidity of Southern, 22, 123-124. See 
also Examiner; Court of Claims. 

Clay, H., 165. 

Clearance of vessels, 51. 

Clerk of House of Representatives 
makes up mil of members, 32. 

Clinton, G., elected Vice-Prest., 161. 

Coast Survey, 88, 151. 

Cobden-Clievallier treaty, 238. 

Coercion of Judicial and Exec, Depts. 
by Congress, 35; of States, 194, 196. 

Coercive authority lacking in Conti- 
nental Congress, 11-12. • 

Coffee, duty on, lowered, 238. 

Coin of U. S. under charge of Treas. 
Dept., 87. 

Coinage, power of, under Arts, of 
Confed., 11; under Const,, 42-43; 
States prohibited from, 52; of silver, 
242. 

Colfax, S., elected Vice-Prest., 205. 

Colonial Congress, declaration of 1765, 
4-5. Stt also Continental Congress. 

Coionies, their forms of government, 
1-5. See also State legislatures. 

Color, discriminations against, prohib- 
ired by Const, amend., 22. 

Colorado, organization into a territory, 
196; admission as a State, 211; min- 
ing regions of, 217. 

Commander-in-chief, 45-46, 73. 

Commerce, inter-state, 13, 51, 224; 
power of Congress to regulate, 40- 
42; statistics of, 88; embargo act 



for protection of, 161. See also Ex- 
ports; Free trade; Protective. 

Commercial crisis of 1837, 172, 1T6; of 
1873, 210. 

Commissions granted by Prest., 74. 

Common law, recognition of, in colo- 
nies, 2-3. 

Compensation of, presidential electors, 
71; for private property seized, 119. 

Competitive examinations, 229. 

Compiomises in Const., 23-24. 

Concealed weapons, 118. 

Confederate govt., organization, 195. 
See also Southern States. 

Confederates, disabilities, 22, 123; in- 
validity of claims for losses, 22, 123- 
124; iron-clad oath, 63-64. See also 
Soulhern StMtes. 

Contirmation by the Senate, 34-35, 73- 
74, 80, 89, 90, 92, 93, 94. 

Congress, 27-64 ; its appointment 
power, 74; depts. to report to, 85, 
87-88; Attorney-Gen. and Postmas- 
ter-Gen. to report to, 92; limitations 
on, 96-98, 101-102; power over juris- 
diction of U. S. courts, 104, 106-107, 
108; its riglit of eminent domain, 
119-120; claims before, 133-135; the 
first Congress, 149-153. See also Co- 
lonial; Continental; House of Rep.; 
Legislation; Senate. 

Congressional districts, 30-31. 

Congressmen, their qualifications, 28; 
nuinber, 29-31; disqualitication for 
other offices during term, 36; oath to 
support Const., 63-64; cannot be 
prest. electors, 65; number in Madi- 
son's adm., 163. 

Conklin, R., his resignation, 77. 

Connecticut, form oi" colonial govt., 3. 

Conspiracy not treason, 112. See also 
Sedition. 

Constitution of U. S., 1-26; the su- 
preme law, 61-62; opposition to its 
adoption, 14, 148-149; its text, 288- 
308. See also Amendments; Con- 
structions ; Limited. 

Constitutional Convention, 14. 

Constitutional law, its scope, 15. See 
also Laws. 

Constitutional Union party. /See Know- 
Nothings. 

Constitutionality of Acts of Congress, 
why determined by judges, 97-102. 

Constitutions of the States, 1-8; their 
changes and developments, 250-274. 

Constructions put upon Const., cause 
of parties, 173-175. See also Loose ; 
Strict. 

Consuls, appointed by Prest., 74; jmis- 
diction of Sup. Ct. in cases affecting, 
102. 103 : parties to actions, 126. 

Continental Congi-ess, 5-7 ; its pow- 
ers, 10-11; its inability to enforce 



312 



INDEX. 



laws, 12, 27; a tribunal of last re- 
sort, 96. 

Continental paper money, amount and 
redemption of, 154. 

Contraband of war, slaves declared to 
be, 197. 

Contracts, States prohibited from im- 
pairing, 52-56 ; those of Treas. Dept. 
to be reported to Congress, 87 ; for 
postal service, 92, 93. 

Convening Congress by Prest.,74. 

Conventions for nominating Prest., 
their beginning, 69-70 ; for amend. 
State consts., 253. 

Copyright, power of Congress over, 
43-44. 

Corporations, modiiication of State 
grants to, 58-56 ; have not the privi- 
leges of citizens, 58 ; empowered to 
exercise right of eminent domain, 
119 ; grants of la'nd to, 246-247 ; in- 
fluence upon State legislation, 257 ; 
minority representation in, 262. See 
also Municipal. 

Corruption, , of carpet-baggers, 207 ; 
provisions in State consts, against, 
253; in city govts., 267. 

Cotton, illegality of export duty on, 51; 
claims for seizure of, 133-134. 

Counsel in criminal prosecutions, 120. 

Counterfeiting, power of Congress to 
punish, 43. 

Counting electoral votes, 66, 71, 213- 
214. ■ 

County organizations, established by 
State constitutions, 253 ; debts in aid 
of railways, 260, 261. 

Court of Claims, appeals to Sup. Ct. 
from, 127; its jurisdiction, 133-135. 

Courtesy of the Senate, 76-78. 

Courts of last resort, their judgments 
final, 121. See also Circuit; District; 
Judicial; State; Supreme. 

Courts martial, 120-121, 140. 

Credit, bills of. States prohibited from 
issuing, 52. 

Credit of U. S. under Continental 
Congress, 12-13. See also Debt. 

Crime, no increase caused by Civil 
War, V. 

Crimes committed in U. S. bldgs. 
cognizable in U. S. courts, 47. 

Criminal law, how guarded by Const, 
amend., 20-21; judgments in one 
State not binding in others, 59-60 ; 
jury trials * obligatory, 110-112; in- 
dictments essential, 118 ; limitations 
on prosecutions, 120-121; its adm. 
chiefly in control of States, 250. See 
also Attainder; Ex post facto. 

Criminals to be delivered up by the 
States, 18, 50, 58. See also Requi- 
sition. 

Crittenden Compromise, 194. 



Crown lands, ownership after forma- 
tion of Union, 9-10. 

Cuba, pro-slavery desire for its ac- 
quisition, 191. 

Cumulative voting, 263. 

Currency, statistics of, 88 ; Controller 
of, 89. See also Legal tender; Paper 
money. 

Current questions, 222-249. 

Custom duties. Treasury Dept. in 
charge of collection, 86. See also 
Imports ; Protective. 

Custom-Houses, number of employes 
and expenses to be reported to 
Congress, 88. 

Customs, Commissioners of, 89. 

Dakotah, organization into a territory, 
196. 

Dallas, G. M., elected Vice-Prest., 179. 

Dartmouth College m. Woodward, 53. 

Davis, J., elected Prest, of Confeder- 
ate govt., 195. 

Death of Prest. and Vice-Prest., 79-81. 

Debt of U. S., payment and refunding 
of, v; Continental Congress with- 
out power to pay, 11 ; practical re- 
pudiation under Continental Con- 
gress, 13 ; its validity secured by 
Const, amend., 22, 123; power of 
Congress to contract, 40; in charge 
of Treas. Dept., 86; its considera- 
tion in first Congress, 152, 153-155 ; 
its amount at close of War of 1812, 
162; its decrease during adm. of 
Monroe, 166; extinguished during 
adm. of Jackson, 173; increased by 
Mexican War, 182; its payment in 
coin, 209-210; increased by Civil 
War, 227; its rapid decrease, 241, 
246. See also Bonds. 

Debts, States cannot obstruct collec- 
tion of, 54; States prohibited from 
making them payable in anything 
but gold and silver, 52; contracted 
in aid of railways, 260-261. 

Debts of cities, 260-261,267-271; neces- 
sity for their limitation, 273-274. 

Debts of States, validity of those 
contracted before adopting Const., 
61; their amount and their assump- 
tion by natl. govt., 154-155; con- 
trolled by their consts., 253. 

Debts of Southern States, their invalid- 
ity, 23, 123 ; those created since 
Civil War, 206-207. 

Decentralization of power in States, 
253. 

Decisions. See Judgments; Supreme 
Court. 

Declaration of Independence, 6. 

Delaware, form of colonial govt., 3; 
withholds ratification to Articles of 
Confed., 9; secedes, 197. 



INDEX. 



313 



Democratic-Repiiblican party, 155. 

Democratic party, 155, 17:^; platform 
in 1848, 181; in 1852, 185-186; its 
di\i!-ioninl860, 192-193; adopts Lib- 
eral Kepub. candidates, 208; nomi- 
nates Tilden as Prest.,211; change 
of attitude in 1S76, 214-216; nomi- 
nates Hancock as Prest., 217; plat- 
form in 1880, 218; its change of 
front loses it the election, 219 ; its 
principles, 220 ; its advocacy of 
civil service reform, 230 ; free tra- 
ders' relation to, 238-239. See 
also Eepublican (Old); Republican- 
Democratic . 

Demonetization of silver, 241-242. 

Departments. See Agriculture; In- 
terior; Justice: Navy; Post-office; 
State; Treasury; War. 

Deposits of IT. S., withdrawn from U. 
S. Bank, 172; placed in U. S. treas- 
ury, 176. 

Dipromatic affairs in charge of State 
Dept., 84-85. 

Disabilities of rebels, 22, 123. 

Disbursements. See Expenditures. 

Discriminating legislation, 113-114. 

Discrimination in railway rates, 225. 

Disputes between the States, settle- 
ment of, under Arts, of Confed., 10. 

Disqualification of Congressmen and 
Senators for other offices during 
term, 36. 

District attorneys, 90. 

District courts, 44, 126, 127, 132. 

District of Columbia, jurisdiction of 
Congress over, 47; appeals from its 
Sup. Ct. to U. S. Sup. Ct., 127. 

Districts in which trials shall be held, 
120, 132. 

Dock-yards, jurisdiction of Congress 
over, 47. 

Documents, public, 94. 

Dodge, Free Soil parts'- nominate, as 
Vice-Prest. in 1848, 182. 

Domestic violence, U. S. to protect 
States from, 59. See also Insurrec- 
tions. 

Door-keeper of House of Rep., 32. 

Douglass, S. A. nominated as Prest. 
by Northern Democrats, 193. 

Dred Scott decision, 190-191. 

Duties. See Customs; Free trade; 
Imports; Internal revenue; Pro- 
tective; Revenue. 

Edtication, grants of lands to States 
for, 115; of colored children, 124. 

Education, Bureau of, 94. 

Election of Congressmen, time and 
mode, 31-32; House of Rep. sole 
judge of, 36. 

Election of judges, 254-256. 

Election of Prest., 65-72; change in 

14 



mode, 160; defeat of further attempt 
to change mode, 167: Jackson recom- 
mends change in mode, 169-170. 

Election of Senators, 33; Senate sole 
judge of, 36. 

Elections. See Ballot ; Suffrage. 

Electoral College, 65-72. 

Electoral Commission of 1876, 72, 214r- 
216. 

Electors of Congressmen, their quali- 
fications, 28 ; penalty for abridging 
their rights, 29. 

Electors of Prest., 65, 72. 

Emancipation proclamation, 197. 

Embargo act, 161. 

Emigration, tax of N. Y. illegal, 56-57; 
a cause of prosperity, 237. 

Eminent domain, 55, 119-120. 

Employes. See Office-holders; State. 

Engineers. See State. 

England, critical relations with, during 
Washington's adm., 157; France de- 
shes U. S. to assist in war a»:ainst, 
158; relations with, 161, 163; orders 
in council, 161 ; War of 1812, 162-163; 
settlement of Oregon question, 181; 
how its system of parties differs 
from XT. S., 231-232; benefits of her 
free trade policy, 238. 

Errors. See Appeals. 

Europe, U. S. opposition to its inter- 
ference with affairs of N. Am. con- 
tinent, 165-166. 

Everett, E., nominated as Vice-Prest. 
by Const. Union party, 193. 

Examiner of Claims, 90. 

Executive Dept., 65-95; its weakness 
under Articles of Confed., 12, 27; 
coercion of Congress over, 35. See 

«. also National government. 

Executive officers, oath to support 
Const., 63-64. See also Cabinet; 
President; State. 

Exemplification acts, 57. 

Expenditures, Treasury Dept. to keep 
account of, 85-86; to be published 
quarterly, 88-89. 

Exports, taxes on, prohibited, 51 : 
Treas. Dept. to prepare statistics of, 
86 ; at close of Jackson's adm., 173; 
increase during Hayes' adm., 217. 

Ex'postfajCto laws prohibited, 50-51, 52, 
111. 

Expulsion of Congressmen and Sena- 
tors, 36. 

Extradition. See Requisition. 

Federal party, 148-149; its advocacy of 
central power, 156; its success, 157; 
causes of unpopularity, 158, 159; 
weakened, 160; further weakened, 
161, 162; its disappearance, 174. 

Felonies on the high seas, 45. 

Fillmore, M., adm. of, 182-186. 



314 



IISTDEX. 



Finances under Continental Congress, 
12-13. See also Debt. 

Fines, excessive, prohibited by Const, 
amend., 21, 122, 142. 

Fiiecal Bank of U. S., bill to incorpo- 
rate, vetoed by Tyler, 177-178. See 
also Bank. 

Fitzsimmons, T., aiitbor of first tariff 
list, 149. 

Florida, purchase of, 115, 116, 164; 
admission as a Stare, 178-179; se- 
cedes, 194; its electoral vote in 1876, 
212, 214, 216. 

Food, the U. S. the largest contribu- 
tor of, iv. 

Foreign affairs in charge of State 
Dept., 84-85. 

Foreign gifts, etc., to office-holders 
prohibited, 52. 

Foreign intervention not feared by U. 
S., 222. 

Foreign postal service, 92, 93. 

Foreigners. See Aliens. 

Forfeitures, power of Prest. to remit, 
83. 

Fort Sumter, surrender of, 196. 

Forts, jurisdiction of Congress over, 
47. 

France, influence in State constitu- 
tions, 8; purchase of land from, 115, 
116; relations with during Washing- 
ton's adm., 157; desires United 
States to assist in war against Eng- 
land, 158; embargo act, 164; free 
trade policy, 288. 

Franchises created by States cannot 
be taxed by Congress, 40; power of 
States to modify, 53-56. 

Free Soil party, origin, 181-182; its 
protest against fugitive slave law, 
186. 

Free trade, foreign and inter-State, 
vii; advocated m Democratic plat- 
form of 1880, 218; position aban- 
doned, 219; advocated by the South, 
236; loss of confidence in Democratic 
party, 238-239. See also Commerce; 
Protective. 

Freedmen, their electoral rights 
guarded by Const, amend., 29; edu- 
cation of their children, 124; exten- 
sion of suffrage to, 200-203, 205; 
legislation to secure their rights. 
206. 

Preedmen's Bureau, 201, 202, 203. 

Freedom of the press secured by 
Const, amend., 19, 117, 136-140; se- 
cured by State consts., 251. 

Freedom of religion, 19, 117, 135-136. 

Freedom of speech secured by Const, 
amend., 19, 117, 136-137; secured by 
State consts., 251. 

Fremont, J. C, proposal to free 
slaves, 197. 



Fugitive slave bill, 58-59, 184-186 ; re- 
pealed, 199. 

Fugitives from justice to be delivered 
up by the States, 18, 50, 58. 

Gadsden purchase, 180. 

Garfield, J. A., assassination, 80-81, 
220; elected Prest, 217; desire for 
civil service reform, 229. 

General government. See National. 

General laws, as opposed to special, 
258-260, 264. 

Georgia, form of colonial govt., 3 ; op- 
position to protective duties, 168 ; 
secedes, 194. 

Germanj% effects of its decentraliza- 
tion of power, 226 ; demonetization 
of silver, 241. 

Ghent, Treaty of, 162. 

Gifts to office-holders from foreign 
states prohibited, 52; to religious 
institutions, 261-262. 

Gold, anti-slavery effect of its dis- 
covery in California, 183; its value 
•in Civil War, 209. 

Government of the Continental Con- 
gress, 6-7. See also National. 

Govern m exits of the colonies, 1-5; of 
the Southern States, 201, 203-204, 
206-207. 

Governors, colonial, powers of, 2, 3 ; 
of Stares, 252, 254-256. 

Grand jury, indictments by, 118. 

Granger laws, 53-54, 224. 

Grant, U. S., 199, 203 ; appointed Sec. 
of War, 204 ; adm. of, 205-216 ; efforts 
at civil service reform, 228. 

Grants to religious institutions, 261- 
262. 

Greeley, H.. heads Eepub. opposition 
to Grant, 207 ; nominated as Prest., 
208. 

Greenback party, 210, 217, 243, 244. 

Greenbacks. See Currency ; Paper 
money. 

Gresham law, 242. 

Grievances, redress by petitioning, 19. 

Guadalupe Hidalgo treatj'', 115. 

Habeas corpus, 133 ; restrictions on its 
suspension, 50 ; power of Prest. to 
suspend, 83 ; not to be used in favor 
of fugitive slaves, 184-185 ; secured 
by State consts., 251. 

Hale, J. P., nominated as Prest. by 
Free Soil party, 186. 

Hamilton, A., 135, 156-157; on Elector- 
al College, 68-69; on U. S. judiciary, 
96-100; on authority of Sup. Ct. over 
State laws, 104-106; his plan of treat- 
ing debt, 153-155; on incorporation 
of Bank of U. S., 155; breach with 
Adams, 160; death, 160. 

Hancock, W. S., nominated as Prest., 



IIN'DEX. 



315 



217; loses election by free-trade let- 
ter, 219. 

Harrison. W. IT., dies shortly after Ms 
election to tlie presidency, 177. 

Hartford Codvention, 162, 174. 

Hayes. R. B., contest- for presidency, 
71-72, 211-216; adm. of, 216-220; ef- 
forts at civil service reform, 229. 

Head-money. See Emigration. 

Holj'- Alliance, Monroe doctrine op- 
posed to design of, 166. 

Homestead law, 11.5-116. 

House of Eepresentatives, 28-33; elec- 
toral votes to be counted in presence 
of, 66 ; 'vvheu it elects Prest., 66-67 ; 
power of impeaching, 82, 101; elects 
Prest., 159, 166-167; conflict with 
Senate in counting votes in 1876, 
213-214 ; question of giving Cabinet 
seats in, 247-249. 

Illinois, minority representation in, 

262-263. 
Immoral publications in the mails, 

138-139. 
Impairment. See Contracts. 
Impeachment, 73, 74^75, 81-82, 100-101, 

205. 
Implied powers of Congress, 48; of 

Prest., 83-84. 
Importation of slaves, 49-50. 
Imports, Treas. Dept. to prepare statis- 
tics of, 86; at close of Jackson's 

adm., 173. 
Impost duties of States limited, 56. See 

also Protective. 
Impressment of Am. seamen by the 

English, 161. 
Improvements. See Internal. 
Inability of Prest. and Vice-Prest., 79- 

81. 
Indians, 94; neither citizens nor aliens, 

109; reservations for, 115; treaties 

with, 1.53. 
Indictments in criminal cases, 118. 
Inilation of ciirrency, 209-210. 
Injunction, U. S. courts can issue 

writs of, 132. 
Insolvency. See Bankruptcy. 
Insurance corporations, influence upon 

State legislation, 257. 
Insurrections, power of Congress to 

suppress, 45; natl. govt, to protect 

States from. 59. 
Interior Dept', 84, 93-94. 
Internal improvements, power of Con- 

gi'ess to make, 48; Whig partj" on, 

174-175, 176; division of panics on, 

in 1848, 181. 182. 
Internal revenue, collected in each 

State, 88; Commissioners of. 89; 

bonds of collectors, 91; its abolition 

in favor of protection, 238, See also 

Solicitor. 



International law, power of Congress 
to punish oftenses against, 45. 

Interpretation of the Const., right of 
States to, 24-25; of U. S. Sup. Ct. to, 
26,61-62; why ^ivf n to judges, 97- 
102; influence ot parties on, 145-14J6. 

Inter-state commerce,. vii, 40-42, 224. 

Inter-state communication, 223. 

Invasions, power of Congress to repel, 
45; natl. govt, to protect States 
from, 59. 

Ironclad oath, 63-64. 

Irredeemable currency, 209-210. 

Jackson. A., battle of New Orleans, 
162-163; adm. of, 168-173; mode of 
appointments, 227. 

Jealousy of the States, 23-24, 69, 147. 

Jeflierson, T., opposition to Const, met 
by amends., 152; on incorporation of 
Bank of U. S., 155; advocates State 
rights, 156; retires from Washing- 
ton's cabinet, 156-157; elected Vice- 
Prest., 157; adm. of, 159-161. 

Johnson, A., coercion and impeach- 
ment by Congress, 35, 82; adm. of, 
200-205. 

Johnson, H. Y., nominated as Vice- 
Prest. by northern Democrats, 193. 

Johnston, J. E., surrender of, 199. 

Judges of U. S. courts appointed by 
Prest., 74. See also State judges. 

Judgments of one State binding in* 
others, 59; of courts of last resort 
final, 121-122. See also Supreme 
Court. 

Judicial power of TJ. s., 21, 35, 44, 96- 
144, 149. See also Courts; State 
judges. 

Judicial proceedings. States to give 
credit to those of one another, 18, 
57-59. 

Judicial officers, oath to support 
Const., 63-64. 

Judiciary act, 106, 126-133. 

Julian, G. W., nominated as Yice- 
Prest. by Free Soil party, 186. 

Jurisdiction of Congress over land 
purchased by govt., 46-47; of IT. S. 
courts, 102-109. /S'e^ G^so Appellate; 
Original. 

Jury trials, in colonies, 5; secured by 
Const, amend., 20-21; obligatory 
only in criminal cases, 110-112; de- 
fined, 122; secured by State consts., 
251. See also Grand jury. 

Justice, Dept. of, 84, 89-92. 

Kansas, its formation into a territory, 
186-187; its admission as a State, 187- 
189, 191-192, 196. 

Kentucky, nullification of Alien and 
Sedition laws, 49; hesitates about 



316 



INDEX. 



secession, 194; remains in the Union, 

197. 
King, W. E., elected Yice-Prest., 186, 
Know-Nothings, 188, 193. 
Knox, H. , favors incorporation of Bank 

of U. S., 155. 

Land Office, 94. 

Lands, speculation in, causes panic of 
1837, 175-176. /See afoo Bounty lands ; 
Public lands. 

Lane, J., nominated as Yice-Prest. by 
Southern Democrats, 193. 

Law Dept. /Ste Attorney-General; Jus- 
tice, Dept. of. 

Law of nations. See International law. 

Laws, Continental Congress without 
powers to enforce, 11-12; for carry- 
ing Const, into effect, 48; under the 
Const, the supreme law, 61-62; Prest. 
entrusted with execution of, 74; to 
be promulgated by Sec. of State, 
85; Sup. Ct. to determine their con- 
stitutionality, 125. See also Constitu- 
tional; Legislation; Muncipal. 

Leavenworth Constitution, 187. 

Lecompton Constitution, 191. 

Lee, R. E., surrender of, 199. 

Legal tender, States prohibited from 
making anything but gold and silver 
a legal tender, 52. See also Paper 
money ; Silver. 

Legal tender act, 35; its constitution- 
ality, 143; its passage a war measure, 
198. 

Legislation in U. S., its defective 
methods, viii. See also Congress; 
General laws; Laws; Local bills; 
Special legislation. 

Legislative Dept. of U. S., 27-64. See 
also Congress. 

Legislatures. See State legislatures. 

Letters of marque and reprisal, power 
of Congress to erant, 45; States pro- 
hibited from granting, 52. 

Libel, 111-112, 136-137, 138. 

Liberal Republican party, 208. 

LibertJ^ See Personal liberty. 

Liberty party. See Abolitionist. 

License laws, 57-58. 

Lieutenant- Governors of States, 252. 

Lighting streets, 269. 

Limited constitution defined, 96-97. 
See also Strict. 

Lincoln, A., forged proclamation, 139- 
140; elected Prest., 193; adm. of, 
196-200; assassination of, 200. 

Loan Assoc, vs. Topeka, 38. 

Lobby, its influence upon State legis- 
lation, 257. 

Local bills prohibited in many States, 
258-960. See also Special legisla- 
tion 

Local govt, in States, 253. 



Loose constructionists of Const., 174, 

215-216. 
Louisiana, purchase of, 115, 116, 161 ; 

secedes, 194 ; electoral vote in 1876, 

212, 213, 214. 

Madison, J., quoted, 149-150; proposes 
Con«t. amends.. 151-152; on incor- 
poration of Bank of TJ. S., 155; lead- 
er of Republican party, 157; adm, 
of, 161-163. 

Mail. See Post. 

Maine, admission of, 164. 

Mandamus, power of Sup. Ct. to issue 
writ of, 126. 

Manufactures, statistics of, 88; their 
influence in forming Whig party, 
175. 

Maritime. See Admiralty. 

Maryland, form of colonial govt., 3; 
withholds ratification to Arts, of 
Confed., 9; secedes, 197. 

Masonic. See Anti-Masonic. 

Massachusetts, form of colonial govt., 
3; prohibited enforcement of fugi- 
tive Slave law, 185; qualifications for 
citizenship, 254. 

Mayors of cities, should have power 
of removal, 272; should have greater 
power, 274. 

Measures. See Weights, 

Meeting of Congress, 36. 

Members of Congress. See Congress- 
men. 

Messages of the Prest., 74; Jefferson's 
change in method, 160-161. 

Mexican War, 179-180. 

Mexico, purchases from, 115, 116; set- 
tling eastern boundary of, 164. 

Migration of slaves, 49-50. 

Milan-Berlin decrees, 161. 

Military districts. Southern States 
formed into, 203-204, See also 
Army, 

Militia, recognition in Const, amend., 
19; power of Congress over, 45; 
mode of requisition for, 46; Prest, 
commander-in-chief when in ser- 
vice, 73; right of States to, 140-141; 
provisions m State consts., 253. 

Milligan case, 140. 

Mines, in charge of Interior Dept., 94; 
claims in, 115. 

Mining, development of, 217, 237. 

Ministers. See Ambassadors. 

Minority representation, 233-235, 262- 
263, 271. 

Mint, Bureau of, 89. 

Misdemeanors, indictments not essen- 
tial, 118. 

Mississippi secedes, 194. 

Missouri, pro-slavery migration from, 
to Kansas, 186-187; hesitates about 
secession, 194 ; remains in the Un- 



IITDEX. 



317 



ion, 197; proposal to free slaves in, 
197; special legislation limited, 
258; minority repi-esentation in, 2Q2. 

Missouri Compromise, 164, l(i5; reop- 
ened, 182-183; repealed, 187. 

Mis-t rials, 118. 

Money, power of Congress to regulate 
value of, 42-43; to be paid only on 
appropriations, 51. See also Bi-met- 
alism; Coinage; Currency; Legal 
tender; Paper monej^; Silver; Specie 
payments. 

Monopolies, power of Congress over, 
41-42, 225.' 

Monroe, J., adm. of, 163-166. 

Monroe doctrine, 165-166. 

Morey letter, 219. 

Mormons, their organization at Kirt- 
land and in Mo., 170. 

Municipal government, 256-257, 266- 
274; evils, v-vi, viii; cannot be taxed 
hj Congress, 39-40; power of Stares 
over, 54-55; created by State consts., 
253. See also Debts of cities. 

Municipal law, use of States for, 223. 



National banks, power of Congress to 
charter, 48; act, 198; the system, 244- 
246. /Se« a^so Bank of U. S.; Fiscal 
Bank. 

National debt. See Debt of U. S. 

National government, its supreme 
power, 16, 61-62 ; cannot be limited 
by States, 120; a party to actions, 
133-135; claims against, 133-135; pro- 
posed that it should pay for rescued 
slaves, 194; tendency to strengthen, 
223-226; powers surrendered to It 
less than those reserved to States, 
250. See also Executive Dept. 

National Eepublican party, 172; adopts 
name of Whig, 173. 

Natural resources of the IT. S., "vi-vii. 

Naturalization, mode of, 42. 

Naval Solicitor, 90. ' 

Navigation, laws, 150, 151, 235, 237-238; 
statistics, 88. 

Navy, power of Continental Congress 
over, 11 ; of Congi'ess over, 45; limi- 
tation of power of States to main- 
tain, 56; its gallantry in War of 1812, 
162; a large navy nut required by 
U S 222 

Navy Dept.", 84, 88, 90, 93. 

Ne exeat, U. S. courts can issue writs 
of, 132. 

Nebraska, its formation into a terri- 
tory, 184, 186-1S9, 191; admission as 
a State, 203, 211. 

Negroes. See Freedmen ; Slaves. 

Nevada, organization into a territory, 
196; admission as a State, 199; min- 
ing regions, 217. 



New England, form of colonial govt., 
2; opposition to War of, 812, 162. 

New Hampshire, form of colonial 
govt., 3; adopts State const., 8. 

New Jersey, form of colonial govt., 3; 
municipal govt, in, 273. 

New Mexico, cessi(m lo U. S., 180; its 
formation into a territory, 184. 

New Orleans, battle of, 16i. 

New York State, form of colonial 
govt., 3: adopts State const., 8; emi- 
gration tax, 56-57; determines elec- 
tion of 1880, 217; introduces voting 
by ballot, 253-254; election of judges, 
254-56; special legislation limited, 
258-259 ; railway questions, 264. 

New York city, ruled by bosses, 219; 
public aid to religious institutions, 
261 ; tax levy in, 268; defects of govt., 
272; public improvement laws, 273. 

Newspapers. See Freedom of the 
press. 

Nobility. See Titles. 

Nolle 2n-osequi, power of Prest. to en- 
ter, 83. 

Nominations for Prest., their begin- 
ning, 69-70. See also caucus. 

North Carolina, fonn of colonial govt., 
3; withholds ratification to Const., 
14; hesitates about secession, 194; 
secedes, 197. 

Northeastern boundary settled, 178. 

Northern Pacific Railway, amount of 
land given lo, 246. 

Northwest, development of, 216-217. 

Northwest bomidary settled, 181. 

Northwest Territory, passage of act 
for its govt., 152. 

Nullification, attempt by S. C, 25, 
170, 171-172; advocated by Hartford 
Convention, 174. 

Number of Congressmen, 28-31; of 
Senators, 33; of presl. electors, 65, 
71; of electoral votes for Prest. in 
1876, 211. 

Oaths of office, 63-64; of Congress- 
men, 32; of Senators, 34. 

Office-holders prohibited from receiv- 
ing foreign gifts, titles, etc.. 52 : can- 
not be presl. electors, 65; increase 
in number caused by Civil War, 227. 
See also Appointing; Civil serA'ice; 
State officers. 

Official household. See Cabinet. 

Orders in council, British, 161. 

Oregon, its disputed electoral vote in 
1876, 212, 214. 

Oregon question settled, 181. 

Orgiinizatiou of House of Rep., 32; of 
Senate, 34; of Congress, 35-36. 

Original jurisdiction of Sup. Ct., 103- 
104, 108, 125-126. 

Overriding vetoes of Johnson, 202,203 . 



318 



II^DEX. 



Pacific coast and CMnese question, 
239-241. 

Pacific railways, only ones chartered 
by natl. govt., 225 ; grants of land 
to, 246. 

Panama Congress proposed, 167. 

Panic of 1837, 172, 176 ; of 1873, 210. 

Paper money, amount and redemption 
of Continental, 154 ; its excessive 
issue causes panic of 1837, 175-176 ; 
attempt to increase amount of irre- 
deemable, 209-210 ; causes fictitious 
prosperity, 236; uniform character 
and value under natl. banking sys- 
tem, 244-245; basis, 246. See also 
Currency ; Greenback party ; Legal 
tender. 

Pardoning power of Prest., 73. 

Parker, I., proposed duty on importa- 
tion of slaves, 151. 

Parliament, denial of its power over 
colonies, 5. 

Parties, their lack of principle, viii ; 
nominations for Prest. by, 69-70; 
their influence in interpreting 
Const., 145-146; need of, 156; be- 
come more clearly defined, 157-158; 
in Jackson's adm., 172; originated 
in construing Const., 173-175 ; 
division in 1860 on slavery question, 
192 ; their present demoralization, 
220-221; demoralized by spoils sys- 
tem, 231 ; how to improve them, 231- 
235 ; their responsibility in special 
legislation, 259. See also Abolition- 
ist ; Anti-Federalists; Anti-Masonic; 
Democratic ; Democratie-Republi- 
can ; Federalist ; Free Soil ; Green- 
back ; Know-Nothings ; Liberal Re- 
publican ; National Democratic ; 
National Republican ; Republican ; 
Whig. 

Patent Office, 94. 

Patents, power of Congress over, 43- 
44 ; for land grants, 115, 116. 

Pauper element, its influence in cities, 
271. 

Paving streets, 269. 

Peace Congress of 1861, 195, 

Penal law, use of States for, 223. 

Pendleton, G. H., his civil service re- 
form bill, 230. 

Pennsylvania, form of colonial govt., 
3 ; special legislation limited in, 258; 
minority representation in, 262 ; mu- 
nicipal govt, in, 273. 

Pension Office, 94. 

People, their ability to remedy evils, 
viii ; rights reserved to, 15, 135-144 ; 
rights secured by Const, amends., 
19-21 ; rights protected more by 
States than by natl. govt.. 250. 

Personal liberty, right of colonists to, 
3; secured by Const, amend., 20; 



how protected, 119, 121; protected 
more by States than by natl. govt., 
250. 

Personal rights guarded by amend- 
ments, 117. 

Petitioning, right of, 19, 140, 251. 

Philadelphia as site of capital, 153, 
155. 

Pierce, F., adm. of, 186-190. 
Piracy, trials for, under Arts, of 
Confed., 10. 

Place of meeting of Congress, 32-33; of 
trial, 120, 132. 

Piatt, T. C, resignation of, 77. 

Police powers of States cannot be con- 
tracted away, 55-56. 

Political assessments, 78, 228, 230. 

Political hist. ofU. S., 145-221. 

Political institutions of U. S., interest 
in, iv ; strain upon, caused by Civil 
War, iv-vi; their influence upon its 
prosperity, vi-vii. 

Politicians, character of, 232-233. 

Polk, J. K., adm. of, 179-181. 

Population of U. S., increase up to 
Monroe's adm., 163; size in 1848, 
182 ; its increase in cities. 270. 

Post-const, hist, of U. S., 145-221. 

Post-Office Dept., 84, 92-93; refusal to 
carry immoral publications, 138-139. 

Postal powers under Arts, of Confed., 
11 ; of Congress, 43. 

Postmaster-General, 84; his duties, 
92-93. 

Potomac, as a site for the capital, 152, 
155. 

Preamble to the Const., 135 ; text, 
288. 

Presents. See Gifts. 

President of the Senate, 34 ; to open 
electoral certificates, 66, 213-214 ; as 
acting Prest., 79-80. 

President of U. S., commander-in-chief 
of army and navy, 45-46; his mode 
of requisition for militia, 46 ; mode 
of election, 65-72; term, 65, 72-73, 
78-79: duties, 73-78, 81, 83-S4; re- 
election, 79 , vacancy, etc., 79-81 ; not 
subject to judicial interference, 79 ; 
impeachment, 81-82; power of creat- 
ing vacancies, 82; his implied powers, 
83-84 ; power of appointment, 83, 89, 
90, 92, 93, 94, 126, 151 ; can require 
opinion of Attorney-General, 90; his 
order not a process of law, 119 ; in- 
fluence of Washington in limiting 
term, 147-148; reeligibility, 152; 
change in mode of election, 160, 167, 
169-170 ; amnesty power taken from, 
203 ; power over army curtailed, 203. 

President's official household, 73. 

Presidents : Washington, 147-157 ; 
Adams, 157-159 ; Jefferson, 159-161 ; 
Madison, 161-163 ; Monroe, 163-166; 



INDEX. 



319 



J. Q. AdamP, 166-168 ; Jackson, IBS- 
ITS; Van Buren, 175-176; Harrison, 
177 ; Tyler, 177-179 ; Polk, 179-181 
Taylor, 182 ; Fillmore, 183-186 
Pierce, 186-190 : Buchanan, 190-19a 
Lincoln, 196-200 ; Johnson, 200-205 
Grant, 205-216; Haves, 216-220 
Garfield, 217 ; Arthur, 220. 

Press. Bee Freedom of the press. 

Prisoners' rights to witnesses and 
counsel secured by Const, amend., 
21. 

Private bills. See Local bills ; Special 
legislation. 

Private property, protected by Const, 
amend., 20, 119-120; power of State 
to appropriate, 55 ; exemption from 
seizure without compensation, 251. 

Prizes, rules of, under Arts, of Confed., 
10 ; power of Congress to regulate, 
45 ; jurisdiction of Sup, Ct. over, 
127. 

Procedure, forms of, 132. 

Proclamation, forged, of Lincoln, 139- 
140. See also Emancipation. 

Prohibition, power of Sup. Ct. to issue 
WTit of, 126. 

Property qualification for citizenship, 
254; rights of women, 263. See also 
Private. 

Proprietary government in the colo- 
nies, 3. 

Protective duties, their constitution- 
ality, 37-39, 120; their consideration 
in 1st Congress, 149-150; first sec- 
tional dispute on, 166; advocated by 
Whigs, 175: division of parties on, in 
1848, 181; their adoption, 196; advo- 
cated in Eepub. platform of 1880, 
217-218: Civil War a pretext for their 
adoption, 235-236; falsity of plea for 
their necessity, 238. See also Com- 
merce; Free trade; Tariff. 

Provincial government in colonies, 3. 

Provisional govts, of Southern States, 
201-202. 

Public aid to religious institutions, 
261-262. 

Public documents, 94, 

Public improvements, frequent change 
oflawsinN. Y.,273. 

Public lands, 114-116, 152 ; ownership 
after formation of Union, 9-10; power 
of Congress over, 46-47, 60-61 ; pur- 
chasing, 90; grants to corporations, 
11 5, 246-247. See also Land Oflice. 

Public works, Superintendents of, 
253. 

Publications, immoral, in the mails, 
138-139. 

Punishments, cruel, prohibited by 
Const, amend., 21, 122, 142. 

Qualifications for Congressmen and 



their electors, 28: for Senators, 33- 

34; Congress to judge, 36: for presl. 

electors, 65 ; for Prest., 67-68 ; for 

citizenship in States, 254. 
Quartering soldiers in private houses, 

19-20, 141. 
Quorum of Confess, 36; necessary to 

elect Prest. or v ice-Prest., 67. 

Race discriminations prohibited by 
Const, amend., 22. 

Railways, power of Congress over, 40- 
4:i: power of States over, 53-54; 
grants of land to, 115, 246: inability 
of States to deal with, 224, 225-226 ; 
influence upon State legislation, 257- 
260; municipal and county debts in 
aid of, 260-261 ; checks upon their 
increasingpower, 263-264. 

Randolpli, E., opposes incorporation 
of Bank of U. S., 155. 

Ratification of Articles of Confed., 19; 
of Const., 114. 

Ratio assessments, attempts to limit, 
272-273. 

Rebels. See Confederates; Southern 
States. 

Receipts of U. S. to be published quar- 
terly, 88-89. 

Reconstruction of Southern States, 
200-202; 205-207. 

Reelection of Prest., 79. 

Register of American ships, 287. 

Religion, Const, amend, regarding, 19; 
Congress cannot establish, 117; free- 
dom of, 135-136. 

Religious institutions, public aid to, 
261-262. 

Religious test for offices prohibited, 63, 

Eemonetization of silver, 217, 242-249. 

Removal of Prest. and Vice-Prest., 
79-81. 

Removals from office, powers of Prest. 
in, 151 : by Jackson, 168-169. See 
also Tenure-of-office. 

Representation in U. S., faults of sj'S- 
tem, viii, 233-235; colonial struggle 
for, 4-6; by majorities secured by 
Const, amend., 22-23. See also Mi- 
nority. 

Representatives. See Congressmen. 

Reprieve. See Pardoning. 

Reprisal, power of Congress to ^rant 
letters of, 45; States prohibited from, 
52. 

Republican form of govt, guaranteed 
to each State, 19, 59, 60. 

Republican-Democratic party, 162. 

Republican party (Old), 155-156, 157- 
158, 159, 160, 172. See also National 
Republican. 

Republican party (New), its formation, 
188; platform in 1860, 193; John- 
son's conflict with, 202, 203 ; its sue- 



320 



INDEX. 



cess ill 1868, 205; division in Grant's 
adm., 207-208 ; nominates Hayes as 
Prest., 211 : contest of 1876,214-216 ; 
elects Garfield Prest., 217 ; platform 
in 1 880, 217-218 ; attacks free trade 
plank of Democrats, 218-219; its 
worK, 220 ; its advocacy of civil 
service reform, 229. iSee ateo Lib- 
eral Eepublican. 

Requisition, of criminals, 18, 58 ; for 
militia, 46. 

Eesignation of Prest. and Vice-Prest., 
71, 79-81. 

Eesources. See TSTatural. 

Resumption of specie payments, 209- 
211, 217. 

Retroactive laM'S in civil matters per- 
missible, 51. 

Returning boards, 208-209, 212, 213. 

Revenue of U. S., its excess over the 
needs of the country, v-vi ; laws to 
originate in Ho. of Rep., . 36-;3'7 ; 
Treas. Dept. in charge of its collec- 
tion, 86-87 ; that from sale of lands, 
115 ; right of search in enforcing 
laws, 142 ; consideration in first Con- 

fjress, 149 ; nullification in So. Caro- 
ina, 171-172. See also Custom ; Free 

trade ; Import ; Internal; Protective; 

Tariff ; Taxation. 
Revolution, govt, during, 6-7. 
Rhode Island, form of "colonial govt., 

3 ; withholds ratification to Const., 

14. 
Rights reserved to the people, 15, 135- 

144 ; protected in State consts., 251. 
Rights reserved to States, 15, 21, 116- 

117, 143-144, 250. 
Rocky Mts., discovery of silver in, 241. 
Roll of Congressmen, made up by 

Clerk, 32. 
Rotation in office, 76-78. 
Rules for govt, of Congress,. 36. 



Salaries of Congressmen and Senators, 
32 ; of judges, 44, 102 ; of Prest. and 
Vice-President, 73. 

Salaries of State officers cannot be 
taxed by Congress, 40 ; power of 
States over, 55. Bee alao Compensa- 
tion. 

Sale of public lands, 60-61. 

Scott, W., sent to So. Carolina to en- 
force revenue collection, 171 ; com- 
mands troops in Mexican War, 179. 

Seal of State Dept., 85. 

Seal of U. S., in custody of State 
Dept., 85. 

Seamen, Treas. Dept. to report to 
Conoress amounts received from and 
expended for, 87-88 ; their impress- 
ment iuto English navy, 161. 

Search warrants, 20, 118, 141-142. 



Secession of Southern States, 193-195. 

Secretaries. See Interior; Navy; State; 
Treasury; War. 

Sedition laws, 48-49, 141, 158-159. 

Seizure. See Search. 

Senate of U. S., 83-35 ; electoral votes 
to be counted in presence of, 66 ; 
when it elects Vice-Prest., 67 ; power 
of confirmation, 73-74, 76-78, 83, 89 ; 
power of trying impeachments, 82, 
101 ; officers confirmed by, 83, 89, 90, 
92, 93, 94 ; concm'rence in removals 
from office, 204 ; conflict with Ho. 
of Rep. in electoral contest of 1876, 
213-214. See also State senate. 

Senators, their salaries, 82 ; their 
qualifications, 34-35 ; disqualified 
for other offices during term, 36 ; 
oath to support Const., 63-64 : can- 
not be presl. electors, 65. 

Seroeant-at-arms of House of Rep., 
32. 

Seymour, H., nominated as Prest., 
205. 

Sherman, W. T., 199. 

Shipping. See Navigation. 

Signers of Articles of Confederation, 
285-287 ; of Const., 301-302. 

Silver question, 217, 241-244. 

Slander. See Libei. 

Slave trade, permitted until 1808, 49- 
50 ; its consideration in 1st Congress, 
150-151. 

Slavery, abolished by Const, amend., 
22, 122-123 ; petitions for its aboli- 
tion, 158; beginning of struggle over, 
164 ; excited feeling regarding, 167- 
168, 178-179 ; in platfornis of 1848, 
181-182 ; its extension to new terri- 
tories, 183-189 ; division of parties 
as to extension, 188 ; Dred Scott de- 
cision, 190-191 ; proposed settlement 
by Crittenden compromise, 194; its 
abolition in State consts., 252. See 
a^so Abolitionist; Fugitive. 

Slaves, escaped, to be delivered up by 
the States, 18-19; invalidity of 
claims for loss of, 123-124 ; emanci- 
pation, 197-198. iSee also Freedmen, 
Fugitive. 

Soldiers not to be quartered in private 
houses, 19-20, 141. 

Solicitor-General, 89 ; duties, 90. 

Solicitor, Naval, 90 : of Internal Reve- 
nue, 90 ; of the Treas., 90, 91. 

South America, proposed conference 
with republics of, 167. 

South Carolina, form of colonial govt., 
3; adopts State const., 8 ; nullifica- 
tion, 25, 170, 171-172 ; opposition to 
protective duties, 168 ; secedes, 193-. 
194 ; attacks Fort Sumter, 196 ; elec- 
toral vote in 1876, 212. 

Southern States, secession, 194 ; pro- 



IJS^DEX. 



321 



posed peace, 199 ; reconstruction, 
800-202, 205-207. See also Confede- 
rate. 

Sovereignty. See State. 

Spain, purchase of land from, 115, 116. 

Speaker of House of Kepresentatives, 
32 : as acting Prest., 79. 

Special legislation, 257-260, 264. See 
also Local bills. 

Specie, payments, resumption of, v, 
5^09-211,217. 

Speech. See Freedom. 

Spirits, duty on, 150. 

Spoils system, 76-78, 169, 227-228, 230- 
231. See also Appointing ; Civil ser- 
vice. 

Squatter sovereignty, 182-183. 

Stamp act, cause of Continental Con- 
gress, 5. 

Standard silver dollars, 242. 

Standing army, how controlled by 
Congress, 46 ; not required by U. S., 
222. 

Stanton, E. H., attempt of Johnson to 
remove, 204-205. 

State banks, evils of system, 244. 

State conventions for amend, consti- 
tutions, 253. 

State courts, cases of concurrent juris- 
diction with U..S. courts, 109-110; in- 
dictments in, 118 ; appeals to Sup. 
Ct. from, 127-132 ; writs of injunc- 
tion from U. S. courts to, 132. 

State Dept., 80, 84-85. 

State engineers, 253. 

Stare executives, 252. 

State judges, 252 ; bound by U. S. 
laws, 61-62 ; their election, 254-256 ; 
minority representation in their 
election in Penna., 262. 

State legislatures, 252 ; power of colo- 
nial, 3 5 ; oaths of members, 63-64 ; 
minority representation in their elec- 
tion in 111., 262 ; biennial sessions, 
264-266. 

State officers, power of States over 
salaries, 55 ; subject to mandatory 
proceedings of Sup. Ct., 110 ; pro- 
visions lor appointment in State 
consts., 251-252. 

State prison inspectors, 253. 

State rights doctrine, 158, 173-175, 
215. 

State senates. 252. 

State sovereignty, 7, 15, 24-26. 

State surveyors, 253. 

States, powers of, under Arts, of Con- 
fed., 10; their reserved rights, 15,21, 
118-117, 143-144, 250; their inde- 
structibility, 15-16: equal suffrage in 
the Senate, 17-18, 24, 33; admission 
of, 17, 19; to give credit to acts of 
one another, 18, 57-59; cannot be 
divided without their own consent, 

14* 



19 ; suits against, by citizens, 21, 
103, 110 ; apportionment of Congress- 
men, 81 ; cannot levy same taxes as 
natl. govt., 39; cannot be taxed by 
Congress, 39^0 ; power of Congi-esg 
to organize govts, after Civil War, 
48; privileges prohibited, 52-57, 62- 
63; their right of eminent domain, 
55; cannot limit power of natl. govt, 
over public lands, CO-61; their laws 
subordinate to those of U. S., 61-63; 
prevention of jealousy in choosing 
Prest., 69; power of Prest. to recog- 
nize their govts., 83; parties to ac- 
tions, 103, 105, 109, 126, 131-132; con- 
stitutionality of their actions judged 
by Sup. Ct., 104-106; cannot modify 
jurisdiction of U. S. courts, 108-109; 
suffrage in, 113, 124; their control 
over citizens, 114; lands given to, 
for educ. purposes, 115; can pass 
seizure laws, 118 ; cannot modify 
power of natl. govt., 120; their penal 
code cannot be modified by U. S., 
122: Sup. Ct. to determine constitu- 
tionality of their acts, 127-132; their 
laws and procedure binding on U. 
S. courts, 132; rights to militia, 
140-141; their jealousy, 147; debts on 
adoption of Const., 154; their as- 
sumption by natl. go-\i;., 155; need of 
a party to assert their rights, 156; 
their increase in number. 163; weak- 
ening of their power, 223-225, 226. 
See also Constitutions. 

Statistics, Bureau of, 88. 

Stephens, A. H., elected Vice-Prest. 
of Confederate govt., 185. 

Story, J., quoted, 12, 136, 137. 

Streets, laying out and paving, 269. 

Strict construction of Const., 174, 215- 
216. See also Limited. 

Suffrage, 124; right of States to limit, 
113; its extension to freedmen, 200- 
203, 205; secured by State rousts., 
251 ; need for its limitation in cities, 
270. See also Ballot. 

Sumner, C, assault upon him by 
Brooks, 189. 

Sumter, Fort, surrender of, 196. 

Supreme Court, 102-106: decisions, 16, 
38, 39-40, 41^2, 43, 48, 50, 51, 52-55, 
56-57, 60, 63, 109, 111-112, 140, 190, 
198, 224; influence of parties on, 145 
-146; interpreter of the Const., 26, 
62; coerced by Congress, 35: judges 
appointed by Prest., 74: no authority 
over Prest., 81; how it has inter- 
preted Const, 125; its jurisdiction, 
125-133; in control of Southern 
States. 192. 

Surveyors. See State. 

Susquehanna, as a site for the capital, 
153. 



322 



IlS'DEX. 



Tallmadge, J., proviso on admission of 

Missouri, 164. 
Tariff, its evils not caused by Civil 
War, v-vi; under Articles of Con- 
fed.. 10; ittJ consideration in Con- 
gress, 149-150, 166, 168: modified to 
avoid trouble with So. Carolina, 171- 
172; the question in Polk's adm., 
180; its future treatment, 235-239. 
Bee also Free trade; Protective; 
Revenue. 

Taxation, without representation in 
colonies, 4-5; Continental Congress 
without power of, 11; power of 
Congress over, 37-40; proportion- 
al to population if direct, 51; 
State can waive power of, 53 ; power 
of States over, 117; cannot be 
exercised to aid private enter- 
prises, 120; at present on a war 
footing, 235; made uniform by State 
constitutions, 253; exemptions from, 
261-262. See a^so Assessments; Cus- 
tom duties; Import; Internal; Rev- 
enue. 

Taxes, colonial levy and appropria- 
tion of in Virginia, 2. 

Taxing power of U. S., development 
of, 226-227. 

Taylor, Z., commands troops sent into 
Texas, 179; adm. of, 182. 

Tea, duty on, 150, 238. 

Telegraphs, power of Congress over, 
40-42; inability of States to deal 
with, 224. 

Tennessee, hesitates about secession, 
194; secedes, 197. 

Tenure-of -office act, 82, 204. 

Terms of Congressmen, 28; of Sena- 
tors, 33: of Judges, 44, 102; of Prest. 
and Vice-Prest., 65, 72-73, 78-79; in- 
fluence of Washington in limiting, 
147-148; of State legislators, 252; of 
State governors, 252. 

Territorfes, have no reserved rights, 
16-17: power of Congress over, 60; 
slavery question in, 182-183, 193. 

Texas, acquisition of, 115: transferred 
to Spain, 164-165: its annexation, 
178, 180: amount paid for surrender 
of its claims to New Mexico, 184; se- 
cedes, 194. 

Texas vs. White cited, 16. 

Text of Articles of Confederation, 
275-287: of Const., 288-308. 

Third terms, 79. 

Thomas, G. H,, appointed Sec. of War, 
205. 

Tilden, S. J., dispute as to presidency, 
71-72, 211-216. 

Times of Congressional elections, 31 ; 
of electing Senators, 33 ; of meeting 
of Congress, 36; of electing Prest. 
and Vice-Prest. , 65, 70-71. 



Titles of nobility cannot be granted 
by the U. S. or by States, 52; office- 
holders cannot receive them from 
foreign govts., 52. 

Tonnage ciuty, 56, 150. 

Topeka Constitution, 189. 

Trade-dollar, 242. 

Trade-marks, power of Congress over, 
43-44. 

Transportation questions, inability of 
States to deal with, 224-225. 

Treason, punishable by Congress, 47; 
impeachment for, 75; defined, 112. 
See also Attainder. 

Treasury Dept., 51, 84; its duties, 85- 
89, 93: deposit system adopted, 176. 
See also Solicitor. 

Treasury, Sec. of, desirability of his 
having a seat in Congress, 248. 

Treaties, the supreme law of the land, 
61-62: postal, 92; jurisdiction of 
Sup. Ct. in cases under, 102, 106, 
127-128. 

Treaty-power, of Continental Con- 
gress, 10; Cont. Congress could not 
enforce, 13; share of Senate in, 34- 
35; of Congress, 40; prohibited to 
States, 52; of Prest., 73. 

Trials. See Jury ; Mis-trials. 

Tyler, J., adm. of, 177-179. 

Union between the States indissoluble, 

17, 24-26, 63. 
United States, adoption of name, 10. 

See also National government. 
United States Bank. See Bank; 

Fiscal. 
Upper California, cession to U. S., 

180. 
Utah, its formation as a territory, 184; 

mining regions of, 217. 

Vacancies in office of Congressmen, 31 ; 
in office of Senators, 33, 34: in office 
of Prest. and Vice-Prest., 71; to be 
filled by Prest., 74; power of Prest. 
to create, 82. 

Van Buren, M., elected Vice-Prest., 
168; nominated as Prest. by Dem- 
ocrats, 172; adm. of, 175-176; nomi- 
nated as Prest. by Free Soil party, 
181-182. 

Vessels, clearance of, 51. 

Veto power of Prest., 75. 

Vetoes of Johnson, overriding, 202, 
203. 

Vice-President, as President of the 
Senate, 34: term, 65, 72-73; mode of 
election, 65-72; as acting Prest., 7'9- 
81; change in mode of election, 
160. 

Vice-Presidents: Adams, 151; Jeifer- 
son, 157; Burr, 159; Clinton, 161; 
Calhoun, 167, 168; Van Buren, 168; 



IIS'DEX. 



323 



Tyler. 177: Dalla?, irP: Fillmore, 
182; King, 186: Breckenridsje, 190; 
Johnsou, 205; Colfax, 205; WOson, 
208; Wheeler, 216: Arthur. 220. 

Virginia, colonial lexj and appropria- 
tion of taxes', 2: form of colonial 
govt., 3: adopts State const., 8: res- 
olutions of 1829, 25; nullification in. 
49; calls Peace Congress in 1861, 
195; secedes, 196-197. 

Volunteer army, its peaceable dis- 
bandment, v. 

Voting. See Ballot; Stiffrage. 

WarDept.,84. 88, 90.93. 

War of 1812, 162-163; 

War-powers, 139-140: of Continental 

Congress, 10: of natl. govt., 43; share 

of Senate in, 35, 45: of States, 56; 

over private property, 119. 
Warrants on U. S. Treasury to be 

signed by Sec. of Treas., 86. See 

also Search. 
Washington, G., on Continental Con- 



gress, 12; opposed to third term, 79; 
adm. of, 147-157. 
Water supplvin cities, 269. 
Webster, D.,'l63, 178. 
Weights and measures, poAver of Con' 

gress to fix standard of, 43. 
West Virginia, admission as a State, 

198-199. 
Wheeler, W. A., elected Vice-Prest., 

214, 216. 
Whig part}^, its first appearance, 173; 

cause of its formation, 174-175; 

gains strength, 176; succeeds in 

1640, 176; ail's in 1844, 177: platfoim 

in 1848, 181; in 1852, 185-186. 
Wilmot pro\iso, 180. 
Wilson, H., elected Vice-Prest., 208. 
Witnesses in criminal trials, 21, 120. 
Woman's suffrage, 60, 114, 263. 
Written constitutions vs. imwritten, 

1-2. 
Writs. See Habeas corpfjs; Injunction; 

Mandamus: Ne e^eat; Prohibition. 
Wyoming, mining regions of, 217. 



